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Alito’s record on free press issues

A summary of media-related decisions by the newest member of the Supreme Court From the Winter 2006 issue of The…

A summary of media-related decisions by the newest member of the Supreme Court

From the Winter 2006 issue of The News Media & The Law, page 30.

This article is an excerpt from a more detailed report, prepared soon after President Bush nominated Samuel A. Alito to the Supreme Court, which can be found on the Reporters Committee’s Web site at

Unlike the two other nominees introduced to the public this year, Supreme Court nominee Samuel Alito has a long paper trail of appellate decisions on constitutional law and other legal issues, due to his 15 years on the U.S. Court of Appeals in Philadelphia (3rd Cir.). While the Senate and the public will debate his political leanings, a review of his First Amendment jurisprudence by The Reporters Committee for Freedom of the Press reveals a strong tendency to side with those arguing free speech cases &#151 with the possible exception of federal prisoners.

As discussed below, Alito has recognized that laws restricting advertising income or imposing financial burdens on speakers or the news media interfere with First Amendment rights, even if they don’t ban the speech outright. He also has shown a willingness to stop government action done in retaliation for speaking out, which is certainly good news for whistle blowers. He has demonstrated an understanding of the importance of the “actual malice” standard in affording the news media protection from libel suits, assuring the breathing room necessary to guarantee a free press. And in determining how to apply the reporter’s privilege against compelled disclosure of sources to individuals claiming to be journalists, he joined in a decision adopting a test that gives freelancers and other nontraditional journalists the protection of the First Amendment &#151 even though the litigant in that case, who ran a hotline for wrestling fans, did not meet the definition of a journalist.

But the news is not all good. Alito has not had a decision clearly upholding the public’s right to keep its government in check through the Freedom of Information Act, and his one opinion in the area &#151 which is somewhat consistent with his previous actions as a government attorney &#151 was a dissent that upheld the privacy interests of individuals in keeping information from the public. He also upheld the dismissal of a case that argued the government had committed fraud in a 1953 case in which the U.S. Supreme Court established the “state secrets” privilege based on false allegations by government witnesses.

Prior Restraints

Alito wrote a unanimous decision in Pitt News v. Pappert, finding a Pennsylvania state law that banned alcohol ads in student newspapers unconstitutional.

The appeals court concluded that the statutory provision, which prevented student newspapers from receiving remuneration for printing alcohol ads, was unconstitutional because it impermissibly restrained commercial speech and it imposed a financial burden on a narrow segment of the media.

Rejecting the state’s claim that the provision’s prohibition on receiving money in exchange for ads does not prevent the paper from printing alcohol ads, the court explained that the purpose of the provision was to discourage speech that the government regarded as harmful.

“Imposing a financial burden on a speaker based on the content of the speaker’s expression is a content-based restriction of expression and must be analyzed as such,” Alito wrote. The provision imposed “‘a financial disincentive’ on certain speech by The Pitt News (alcoholic beverage ads) because would-be advertisers cannot pay the paper to run such ads.”

In Swartzwelder v. McNeilly, Alito affirmed a U.S. District Court’s order that granted a preliminary injunction against the enforcement of a police office order and memo requiring bureau employees to obtain clearance before giving expert testimony. Alito explained that the magistrate judge did not abuse his discretion in finding that as a regulation affecting speech that is a matter of public concern &#151 judicial testimony &#151 Order 53-7 had to be narrowly tailored to protect the public interest in that speech, yet failed to do so. The appellate court held that while the city asserted many legitimate interests, the regulation was overly broad; it was poorly tailored for keeping track of testifying employees’ locations since it applied only to employees giving opinion, not fact, testimony. While disrupting the workplace and preventing friction among colleagues are important concerns, Order 53-7 does not apply to fact testimony, which could also present a danger of disruption. Moreover, the standard for granting approval is whether the testimony would be “valid,” not whether it would cause a disruption.

Alito joined the unanimous panel in Abu-Jamal v. Price in 1998, overturning restrictions that kept convicted inmate Mumia Abu-Jamal from being paid for articles and commentaries about life in prison. The rules forbade prisoners from running businesses and making income from certain activities, and the court noted that to the extent they interfered with constitutional rights they could only survive scrutiny if they were directly related to legitimate penological interests and there were no less-restrictive alternatives. The panel ruled that the restrictions on Abu-Jamal, whose status as a death-row inmate had attracted widespread public attention particularly after his commentaries appeared on National Public Radio, could not pass that test, and were therefore unconstitutional as applied to him.

Alito joined a panel opinion striking down a broad prior restraint brought as punishment in a libel case in Kramer v. Thompson in 1991. An attorney, Stephen Kramer, brought a libel action against his former client, Richard Thompson, who had repeatedly made and spread disparaging remarks about Kramer. A trial court found for Kramer and, after repeated failures by Thompson to amend his libelous behavior, ordered a prior restraint on any additional libelous speech by Thompson. The Third Circuit ruled that since the Pennsylvania Supreme Court had made strong statements against prior restraint orders, that the district court was not justified in ordering a prior restraint against Thompson.

Secret Courts

Alito joined in a unanimous 2005 Third Circuit decision in Herring v. U.S., a controversial case over the state secrets privilege. The case was an offshoot of a 1953 case, Reynolds v. United States, in which the U.S. Supreme Court created the state secrets privilege, finding that litigation over an air crash could not go forward because it would require the revelation of state secrets. The government therefore was able to withhold the air crash records for national security reasons. But years later, declassified records showed that there was a cover-up of negligence, and that the original records would not have revealed any secrets. A widow of a pilot killed in the crash tried to revive the suit, but the appellate panel refused to find a fraud upon the court, which would have been necessary to overturn the original decision, saying there is an “obviously reasonable” truthful interpretation of statements made by the Air Force in the 1953 lawsuit.

Alito joined a unanimous panel decision in Shingara v. Skiles, in which the Third Circuit in 2005 overturned a district court’s protective order that sought to prevent further disclosure of discovery documents by the plaintiff to the news media. The plaintiff, a police officer who sued over alleged retaliation for his complaints that radar detectors used by the city police department were faulty, disclosed reports on the faulty detectors to the media. The appellate court found the protective order to be overbroad and without merit and overturned the district court’s order.


Alito wrote for a split panel in 2001 in a libel case that required a close look at the evidence necessary to establish “actual malice” &#151 knowledge of falsity or reckless disregard for the truth. The panel in Tucker v. Fischbein did find as an initial matter that articles in Time and Newsweek about an anti-violence advocate were potentially defamatory, but upheld the dismissal of the claims against the magazines because of the lack of actual malice &#151 even though there was evidence the Time reporter departed from professional standards by ignoring a press release issued by the activist and her husband, which attempted to explain their lawsuit against a rapper’s lawyer. The Third Circuit found that they had presented no evidence that showed any actual malice on behalf of Time.

But Alito found there was enough evidence to survive summary judgment &#151 dismissal of the case &#151 with regard to Richard Fischbein, the lawyer representing rapper Tupac Shakur’s estate, because he should have known of the alleged defamatory nature of the statements before subsequent articles were published.

Reporter’s privilege

Alito joined a unanimous panel in a 1998 case that applied a test to determine who qualifies for a First Amendment-based reporter’s privilege that is generally accepted as a positive rule by media lawyers. The court did, however, overturn the lower court’s determination that the privilege should apply.

In In re Madden, the panel overturned a district court decision that Mark Madden, who was not a party in a civil case between wrestling promoters, was entitled to claim a journalist’s privilege. Madden produced tape-recorded commentaries on World Championship Wrestling (WCW) events and wrestlers for a 900-number hotline. The Third Circuit found that the privilege “is only available to persons whose purposes are those traditionally inherent to the press; persons gathering news for publication.” It ruled that although Madden sought and received information for dissemination to the public, the test to determine who is a journalist under the privilege requires more.

Freedom of Information

Judge Alito dissented in a 1992 Freedom of Information Act decision that granted access to employee home addresses to the Federal Labor Relations authority for use in collective bargaining, but the U.S. Supreme Court ultimately ruled in 1994, in a similar case from the Fifth Circuit, that disclosure of the home addresses would intrude upon the employees’ personal privacy interests. In his dissent in Federal Labor Relations Authority v. U.S. Department of the Navy, Alito wrote, “It seems clear to me that all federal employees &#151 from Cabinet officers to GS1’s &#151 have a privacy interest of some weight in their home addresses and that there is no public interest cognizable under FOIA in the disclosure of these addresses.” The privacy exemptions to FOIA allow information to be withheld if the intrusions on personal privacy outweigh the public’s interest in disclosure.

In Pansy v. Borough of Stroudsburg, Alito concurred in a Third Circuit decision to allow Ottaway Newspapers, Inc., The Pocono Record and the Pennsylvania Newspaper Publishers Association to intervene in an action to gain access to a settlement agreement between a city and its former police chief in their civil rights suit. The district court had determined the settlement agreement to be confidential, and because the agreement was never filed in the court, also dismissed the newspapers’ claim to access as a judicial record. The Third Circuit noted that “this case thus illustrates how confidentiality orders can frustrate, if not render useless, federal and state freedom of information laws.”

Alito wrote the Third Circuit opinion in the whistle blower case of Mitchum v. Hurt in 1995, which held that current and former employees of the Veterans Administration Medical Center alleging retaliation in violation of their First Amendment rights were entitled to bring lawsuits for injunctive and declaratory relief but not money damages.