How would Justice Alito rule on Holocaust denial and free speech?

Justice Alito has frequently departed from the majority of the Supreme Court Justices opinions on matters involving the first amendment. What distinguishes him from his colleagues, in his emerging free speech jurisprudence, is the empathy he has expressed for the intended victims of certain forms of speech. That is clear from his dissenting opinions in the recent cases of US vs. Stevens and Snyder vs. Phelps.

The Stevens case, which was heard in May 2010, involved animal torture videos, aka crush videos, wherein people with certain sexual proclivities would derive pleasure watching women in high heels stomp small animals to death. While the majority of the court upheld this behavior as an expression of ‘free speech,’ Alito stated that “animals used in crush videos are living creatures that experience excruciating pain.” He went on to describe crush videos as a “depraved form of entertainment.” Accordingly, he departed from the majority and, in his dissent, argued that crush videos should be outlawed as a form of pornography, which is not protected speech. Six months later, Alito’s dissent became law when, in December 2010, Congress enacted legislation which outlawed crush videos as a form of pornography.

The Snyder case , which was heard in 2011, involved the activities of the Westboro Church, which is known to be anti-gay. That church has a known practice of seeking out and picketing funerals of gay and lesbian soldiers. In Snyder, the Westboro church picketed the funeral of a Matthew Snyder, a deceased solider, while his family and friends were grieving his death. They carried on this protest within close proximity to the funeral service. The Snyders’ sued the church in a district court and were awarded monetary damages for emotional distress. The US Supreme Court reversed the trial court and ruled the Church was engaged in protected speech.

In Snyder, once again, Justice Alito departed from his colleagues. In his lone dissent, Alito reasoned that the free speech activities of a fringe church group, who were opposed to the decedents sexual preference, did not justify heckling his grieving family at his funeral. He noted that the Snyder family had an “elementary right” to bury their son in peace; and, that the church had no right to launch “a malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability.” Alito further wrote that “Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case. ”

Alito also pointed out that the Westboro church could have applied for a public permit to protest in any number of public places. That it did not have to do so within eye shot of the decedent’s funeral. As in the Stevens case, Alito’s dissent became the law when, in August 2012, President Obama signed the veterans bill restricting protests at military funerals. The bill contains reasonable time place and manner restrictions on Westboro’s exercise of free speech. It dictates that future protests cannot take place two hours before or after a military funeral. Furthermore, said protests must take place at least 300 feet away from the funeral and family members.

If Alito had been on the high court back in the days of the Skokie controversy, he would have probably reasoned that Neo-Nazi’s did not have an absolute right to march through a predominately Jewish neighborhood that consisted mainly of holocaust survivors. He would have probably reasoned that they should have applied for a public permit, and have conducted the march away from the homes of holocaust survivors. Not within their eyesight or hearing range.

Similarly, if the issue of holocaust denial were before the high court, Alito would probably balance the free speech claims of deniers, against the emotional pain inflicted on the intended recipients of said speech. This would include holocaust survivors and their descendants, who have expressed that holocaust denial is disrespectful to the memory of their relatives; and, that it invokes the same emotions that fueled the holocaust in the 1940’s. Alito’s reasoning would probably be similar to what he expressed in the Snyder case. That “our profound national commitment to free and open debate is not a license for vicious verbal assault” on descendants of holocaust survivors, or the memory of their deceased relatives.

Indeed, Alito is becoming the voice of reason and compassion on the high court with regard to free speech cases. Alito realizes that we can still have a robust and open debate about important civic issues. However, we need not extend that protection to fringe groups whose stated purpose is to inflict emotional or physical pain upon their intended victims.