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Alito: You Can[!!!] Say That!

Via the Supreme Court Nomination Blog, I've come across Saxe v. State College Area School District, 240 F.3d 200 (3d Cir. 2001): "There is no categorical 'harassment exception' to the First Amendment's free speech clause.... When laws against harassment attempt to regulate oral or written expression on such topics, however detestable the views expressed may be, we cannot turn a blind eye to the First Amendment implications."

Good to know he takes at least a somewhat Volokhian (and Bernsteinian) view of such issues.

quickjustice (mail):
I'm a conservative Republican. I've argued before Judge Alito, and I can tell you I was disappointed. He permitted his colleagues on the Third Circuit to take down an innocent lawyer who had made a politically unpopular argument to the Court. I reviewed the papers together with a number of other prominent D.C. appellate lawyers, and our conclusion was identical: the outcome was a travesty. Alito didn't personally commit the injustice, but he stood by passively, and let it happen. Do we really want someone who lacks the moral courage to challenge his colleagues to prevent an injustice on the High Court?
10.29.2005 12:44pm
jurisprude:
q.j.,

can we get a cite on that, so we can draw our own conclusions?
10.29.2005 1:14pm
PAC:
He permitted his colleagues on the Third Circuit to take down an innocent lawyer who had made a politically unpopular argument to the Court.

What does it mean to "take down a[ ] ... lawyer"?
10.29.2005 1:15pm
jurisprude:
that is, unless you're referring to Saxe...
10.29.2005 1:16pm
Hoosier:
I'm also unclear on what "take down" means.

I'm not an attorney, so I don't know about SOP in court when a colleague gets "in the face" of a lawyer who is before him. But as a college professor, I see this happen at presentations by graduate students all the time: One of my colleagues gets ticked off at the poor grad student because he or she disagrees with something that gets said. I don't necessarilly leap in to defend the student unless it gets out of hand.

What's the story in the legal profession?
10.29.2005 1:36pm
elaine (mail):
Hoosier, I can only speak from my own experience clerking and litigating, but I have NEVER (and wouldn't expect to) see an appellate judge directly take on a colleague who is aggressively questioning a lawyer. If a judge is concerned about his or her colleague's questioning, either from a politeness or jurisprudential standpoint, the concerned judge will either 1) try to change the subject by asking a question that goes in a different direction (or even by "filibustering" a bit by speechifying while everyone cools down) or 2) try to help the struggling lawyer by asking a "softball" question.

Perhaps quickjustice was disappointed that Alito didn't ask more helpful questions during oral argument, or perhaps quickjustice is implying that he expected Alito to write a dissent in the case in question. It's difficult to know more without knowing what the case was, or who the other judges on the panel were.

Different judges have different styles for dealing with oral argument, and a judge's silence during oral argument does not necessarily or even normally, imply agreement with one's colleagues on the bench. (You need look no farther than Clarence Thomas for the proof of that).

Finally, it's hard to know what quickjustice means by an 'innocent' lawyer. I've seen appellate lawyers get roughed up by panels because the lawyer is unprepared, green, arrogant, or simply because someone on the panel is bored or cranky that day. You need to accept and expect that as part of the job. My first oral argument was before a panel that included one judge who wanted to ease the young lawyer into appellate advocacy and one judge who wanted to "haze" me as way of welcoming me to the fraternity. He grilled me on ever more absurd hypotheticals (it was a fairly straightforward case), often cutting me off mid-sentence, for what felt like the longest 15 minutes of my life. All in a day's work...
10.29.2005 2:16pm
Matt Barr (mail) (www):
I review three leading Alito free speech opinions, including Saxe, on my blog today.

Alito cited Prof. Volokh's Rutgers Law Review article on harassment laws and free speech in Saxe.
10.29.2005 4:15pm
Aaron C. (mail):
ELITE!!!!
10.29.2005 5:14pm
mikem (mail):
HOI POLLOI!!
10.29.2005 5:52pm
Visitor Again:
Quick Justice's comment led me to conclude he was talking about a lawyer sanctioned or disciplined for making a frivolous argument, not merely one who was questioned in a hostile manner. One hopes Quick Justice will clear up the confusion and refrain from making similarly vague remarks in the future. This kind of vague attack is unfair to its target, Alito, and to its recipients, us, the readers.
10.29.2005 6:19pm
Olustee (mail):
If I understand correctly the meaning of the quote from Saxe v. State College, it is on a collision course with the current law of the land re: school hostile environment sexual harassment, i.e., the 1997 Sexual Harassment Guidance still in force and promulgated by the Office of Civil Rights of the Dept. of Education, which demands of school administrators that they take "immediate corrective action" on being informed of a complaint. "Corrective" seems to imply that the guilt of the accused is to be assumed "immediate[ly]" upon a complaint. If the accuser appeals to the OCR, it can threaten a school with a procedure concluding with the withdrawal of federal funds if the Guidance is not followed. It should be added that the Guidance and a later communication from the OCR both require that school officials observe the due process rights of the accused. I suggest that this latter requirement is a dead letter if in fact the "immediate corrective action" requirement is to be met.
10.29.2005 11:10pm
Bruce Wilder (www):
Alito's opinion in Saxe is really just a right-wing rant -- unconstructive and unhelpful in every respect. He could have been constructive in clarifying the law in this area, but he does not bother. He makes pointless distinctions and ungrounded assertions, and gives no useful guidance to the college administrator trying to draw up a workable policy.

If you are completely "results-oriented" the decision might reassure you. I happen to agree with the decision. But, the opinion is total crap.
10.30.2005 12:50pm
Hans Bader (mail):
If Alito's opinion in Saxe were the slightest bit right-wing, Saxe would not have been (as it was) unanimous.

Both of Alito's colleagues, including a female Clinton appointee, joined him in invalidating the challenged speech/harassment code on free speech grounds.

Alito can't be faulted for not giving the school district a lot of guidance in Saxe, when the Supreme Court's earlier Davis decision regardin harassment in schools gave absolutely no guidance at all on First Amendment issues.

The Supreme Court just said in Davis that schools have to prevent harassment, but can't take action that would violate students' statutory or constitutional free speech rights, without bothering to explain how to distinguish between speech that could and could not be regulated (and even that non-guidance was dictum, since the school district didn't raise any free speech issue before the Supreme Court).
10.30.2005 7:01pm