Justice Alito doesn't like the First Amendment

He was the lone dissenter in the crush video case. And now he is the lone dissenter in the funeral protester case:

The Supreme Court ruled Wednesday that the First Amendment protects fundamentalist church members who mount anti-gay protests outside military funerals, despite the pain they cause grieving families.

The court voted 8-1 in favor of the Westboro Baptist Church of Topeka, Kan. The decision upheld an appeals court ruling that threw out a $5 million judgment to the father of a dead Marine who sued church members after they picketed his son's funeral.

Chief Justice John Roberts wrote the opinion for the court. Justice Samuel Alito dissented.

Roberts said free speech rights in the First Amendment shield the funeral protesters, noting that they obeyed police directions and were 1,000 feet from the church.

"Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and - as it did here - inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker," Roberts said. "As a nation we have chosen a different course - to protect even hurtful speech on public issues to ensure that we do not stifle public debate."

Alito strongly disagreed. "Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case," he said.

Maybe the title to the post is too harsh... Justice Alito did side with corporate First Amendment rights.

In other SCOTUS news, the Court again reiterated that judges weren't tied to the guidelines, even on resentencing cases. In Pepper v. United States, Justice Sotomayor explained that a resentencing court could take into account post-sentencing rehabilitation. Doug Berman has more at his blog, but it is worth pointing out that the Court made sure to reiterate to district courts that there are times that the guidelines are based on "wholly unconvincing policy rationales not reflected in the sentencing statutes Congress enacted."

In other news, give your thoughts on Magistrate Judge Hopkins.

8-1 Supreme Court strikes down law banning videos of animal cruelty

Rick Bascuas and I have had a lot to say on this issue as we represented the plaintiff in a similar case involving cockfighting videos. After the oral argument in Stevens (the dogfighting video case), I had this to say:

From what I heard, the case will be 8-1 in favor of the criminal defendant Stevens, holding that Section 48 -- prohibiting the sale of depictions of animal cruelty -- is unconstitutional. The one Justice that seemed to say that Congress could pass such a statute was Alito.

Too bad I can't call football games that well! Today, the Supreme Court ruled 8-1 in favor of the defendant Stevens and invalidated the statute. Alito was the one dissenter. From the New York Times:

In a major and muscular First Amendment ruling, the Supreme Court on Tuesday struck down a federal law that made it a crime to create or sell dogfight videos and other depictions of animal cruelty.

Chief Justice John G. Roberts Jr., writing for the majority in the 8-to-1 decision, said the law created “a criminal prohibition of alarming breadth” and that the government’s aggressive defense of the law was “startling and dangerous.”

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As a general matter, Chief Justice Roberts wrote, “the First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the government outweigh its costs.” He continued, “Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.”
Having concluded that the First Amendment had a role to play in the analysis, the chief justice next considered whether the law on animal-cruelty depictions swept too broadly.
The 1999 law was enacted mainly to address what a House report called “a very specific sexual fetish.”
“Much of the material featured women inflicting the torture with their bare feet or while wearing high-heeled shoes,” according to the report. “In some video depictions, the woman’s voice can be heard talking to the animals in a kind of dominatrix patter.”
When President Bill Clinton signed the bill, he expressed reservations, prompted by the First Amendment, and instructed the Justice Department to limit prosecutions to “wanton cruelty to animals designed to appeal to a prurient interest in sex.” But since then, the government has used the law in several prosecutions for trafficking in dogfighting videos.
Chief Justice Roberts said the law applied even more broadly. Since all hunting is illegal in the District of Columbia, for instance, he said, the law makes the sale of magazines or videos showing hunting a crime here.
“The demand for hunting depictions exceeds the estimated demand for crush videos or animal fighting depictions by several orders or magnitude,” he wrote.
The law contains an exception for materials with “serious religious, political, scientific, educational, journalistic, historical or artistic value.” Those exceptions were insufficient to save the statute, the chief justice wrote.
“Most hunting videos, for example, are not obviously instructional in nature,” he said, “except in the sense that all life is a lesson.”
Justice Samuel A. Alito Jr. dissented, saying the majority’s analysis was built on “fanciful hypotheticals."