The Reporters Committee for Freedom of the Press has prepared a summary of the First Amendment and media-related cases decided by U.S. Supreme Court nominee Samuel A. Alito Jr.
Unlike the two other nominees introduced to the public this year, 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 for the Third Circuit. A review of his First Amendment jurisprudence reveals a strong tendency to side with those arguing free speech cases — with the possible exception of federal prisoners.
As discussed in the report, 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 taken in retaliation for speaking out, and 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.
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 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.
The complete summary of Alito’s record on free press issues is here.