Three Samples Of Sam Alito

While gambling at the Trump Taj Mahal casino in Atlantic City, Ayhan Hakimoglu chose to accept from the casino many free drinks. That, he said, was why he lost "substantial" sums and why he sued the casino, charging that it "intentionally and maliciously enticed him" on numerous occasions. Judge Sam Alito was unpersuaded.

Writing for the U.S. Court of Appeals for the Third Circuit, Alito noted that New Jersey courts have not made servers of alcohol liable beyond injuries resulting from drunken driving or accidents or brawls in a bar. He said that although the state's regulation of casinos is "intense," there was no evidence of a legislative intent to make casinos liable for giving alcohol to gamblers. Alito agreed with a lower court's holding that extending such liability into an area "so fully regulated" would not be a "predictable extension of common law tort principles."

Alito also cited the lower court's opinion that making casinos liable for losses incurred by drunken gamblers "could present almost metaphysical problems of proximate causation, since sober gamblers can play well yet lose big, intoxicated gamblers can still win big, and under the prevailing rules and house odds, 'the house will win and the gamblers will lose' anyway in the typical transaction."

Score one for the principle that courts should not improvise social policy, particularly in areas where legislatures have made detailed pronouncements.

A parent raised a constitutional challenge to a Pennsylvania school district's " 'anti-harassment' policy." It forbade "unwelcome" verbal conduct pertaining not only to the usual things (race, religion, ethnicity, sexual orientation) but also to "clothing," "appearance," "social skills," "hobbies," "values" and--in case the speech code's authors had inadvertently left any speech unpoliced--"personal characteristics." The school district said the U.S. Constitution permits such limits on speech. Alito disagreed.

In his opinion for the Third Circuit Court, he said that insofar as the policy attempts to prevent students from making negative comments about each other's clothing and social skills, the policy may be "brave, futile or merely silly." But by proscribing disparaging speech about a person's "values," the speech code "strikes at the heart of moral and political discourse--the lifeblood of constitutional self-government (and democratic education) and the core concern of the First Amendment."

Meticulously parsing precedents from cases concerning speech codes, he said there is "no categorical 'harassment exception' to the First Amendment" just because of the "secondary effects" of certain kinds of speech with "emotive impact." Such speech, although perhaps "evil and offensive, may be used to communicate ideas or emotions that nevertheless implicate First Amendment protections."

Alito noted that First Amendment law allows schools to regulate speech that involves "a concrete threat of substantial disruption." The fact that a court allowed the suspension of a middle-school student who drew a Confederate flag in math class suggests that the speech police have, to say no more, ample latitude. But Alito demonstrated that under existing precedents, neither an "undifferentiated fear or apprehension of disturbance" nor "the mere desire to avoid 'discomfort' or 'unpleasantness' " suffices to justify restricting student speech.

Score one for the principle that the First Amendment is not inferior to the desire to enforce "sensitivity."

Speaking of that amendment and its traducers, a Pennsylvania law banned advertisers from paying for "alcoholic beverage advertising" in media affiliated with educational institutions. The Pitt News, the University of Pittsburgh's student newspaper, sued, charging a violation of its First Amendment rights. Alito agreed.

The Pitt News is distributed free to the university's 25,000 students, two thirds of whom are old enough to drink alcohol. All the paper's revenues come from advertising, much of it from alcoholic-beverage ads of the sort that appear in other free papers distributed around the university. The law cost the paper $17,000 in one year, which caused the paper to shrink in size and to postpone the purchase of digital cameras and improved computers.

In his opinion for the court, Alito held that the law was an impermissible restriction on commercial speech, discouraging a form of speech because of its content. He said there was no reasonable connection between the speech restriction and the Pennsylvania government's asserted reason for it--preventing underage drinking. Besides, he said, the underage minority of the paper's readers see a "torrent" of alcoholic-beverage ads on broadcast media and in the other free papers displayed on campus.

Score one for the principle that commercial speech, too, merits robust protection. And, again, for the principle that good intentions do not trump the Constitution.

Were Alito confirmed by January, he would participate in the next case the Supreme Court will hear concerning government rationing of political speech--a.k.a. "campaign-finance reform." Which might be why Democrats have insisted that his hearings not begin until January.