In an opinion column for the Washington Post, George Washington University law professor Jeff Rosen discusses privacy and US Supreme Court Justice Samuel Alito:
By an 8 to 1 vote this past week, the Supreme Court upheld the First Amendment right of Kansas’s Westboro Baptist Church to engage in hateful protests at military funerals. The lone dissenter was Alito, who insisted that the grieving relatives of Matthew A. Snyder, a Marine who died in Iraq, should be able to sue the church for a “vicious verbal assault” that violated their privacy and dignity.
The Westboro case is just the latest lopsided victory for free speech at the Supreme Court, including an 8 to 1 decision last year striking down a federal law making it a crime to distribute videos depicting animal cruelty. Once again, the only dissenter in that case was Alito, who insisted that Congress had the power to ban “a form of depraved entertainment that has no social value.”
More than any other justice, Alito is emerging as a stalwart defender of privacy, particularly in cases with strong free speech interests on the other side. He cares more about the government’s ability to protect a range of privacy values – including dignity, anonymity and community standards of decency – than anyone else on the court.
As a privacy defender, I find that Alito sometimes goes too far in favoring privacy over free speech, even for my taste (like the man on the Titanic who said, “I asked for ice, but this is ridiculous”). Yet his emergence as a guru on these issues should come as no surprise. As a Princeton student in 1971, Alito chaired a student conference on surveillance, data-gathering and privacy, which produced a sweeping report declaring that “we sense a great threat to privacy in modern America” and that “privacy is too often sacrificed to other values.” […]
Alito doesn’t always side with privacy over free speech, of course. He joined a unanimous opinion on Tuesday holding that corporations don’t have “personal privacy” rights that can defeat a Freedom of Information Act request for corporate data. And he joined a 5 to 4 decision in 2009 holding that when the police rely on erroneous information about a suspect in a government database to make an arrest, any evidence found afterward need not be excluded from the trial.
All this suggests that Alito’s defense of privacy is part of his broader tendency to be deferential to Congress, state legislatures and local communities. Between 2006 and 2009, according to the Supreme Court database, the Roberts Court struck down six acts of Congress as unconstitutional. Alito voted with the majority in only two of these cases, fewer than any of the other conservative justices.