Supreme Court

Sandra Day O'Connor vs. Samuel Alito: Free Speech Edition


New Republic legal affairs editor Jeffrey Rosen spent some time with retired Supreme Court Justice Sandra Day O'Connor last week and produced a short article titled "Why I Miss Sandra Day O'Connor." Don't worry, it's not a trick headline. As National Review's Ramesh Ponnuru quipped, "If your reaction is to think, 'Um, because you're a liberal' you will not be wrong." In a nutshell, Rosen misses O'Connor because she was a judicial moderate and because "her approach looks far better than that of her more conservative and increasingly influential replacement, Justice Alito." Fair enough. Rosen is a liberal and O'Connor was more likely to vote his way than Samuel Alito now is. But surely Justice Alito has done something recently that Rosen might find just a little bit acceptable? For example, what about voting to strike down a state law that restricts free speech? Actually, no. Here's Rosen:

The difference between O'Connor and Alito was obvious during our interviews in big ways and small. O'Connor strongly suggested that, unlike Alito, she would have voted to uphold California's law restricting violent video games. "As a former member of the Court, I'm not going to say, 'Oh my God they made a mistake,' but you don't read the First Amendment and think that's what is required," she told me.

Rosen doesn't criticize this statement of O'Connor's in any way. He just presents it as another example of "how unfortunate it was for the Court and the country that she resigned when she did." Shouldn't a liberal like Rosen prefer Alito in at least this one case?


NEXT: Obama Uses Bully Pulpit to Demand End of Political Rhetoric

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Yo, who do you think enacted the California law? Conservatives?

    1. The same nasty mothers who were having conniption fits over the Casey Anthony verdict.

      Their tears are so yummy and sweet.

  2. Shouldn’t a liberal like Rosen prefer Alito in at least this one case?

    Neither liberals nor conservatives favor free speech. They just favor different kinds of censorship.

    1. Bingo. Censorship “for the right reasons” is a hallmark of both groups.

  3. So let me get this straight:
    Political Hack Douche demonstrates political hack douchery…color me unshocked.

    I am no SCOTUS watcher but I can’t name a single justice in the past 30 years that was more good than bad from a libertarian perspective…the “closest” I think can be Thomas, and he is still at about 60% bad IMHO.

    Lend not to the king, for he has no reason to repay.

  4. If you let any free speech pass muster, the next thing you know people are talking about candidates…during an election.

    1. That right there, that’s just CRAZY talk…

  5. “Shouldn’t a liberal like Rosen prefer Alito in at least this one case?”

    Surely you jest. Liberals are all for suppressing “violent” speech. They only support the First Amendment when it comes to sex. Conservatives are vice versa.

    It has been that way since at least the late 1960s, when liberals blamed the Robert Kennedy and Martin Luther King assasinations on violent TV programs — while simultaneously sneering at conservatives for suggesting that kids could possibly be influenced by sex in the popular media.

    1. At least the conservative formulation (sex bad, violence good) has some historical basis.

    2. Some liberals think that way (as well as some conservatives). But a blanket statement like “Liberals are all for suppressing “violent” speech” is not even close to accurate.

  6. There are no liberals. There are only Democrats.

  7. Speaking of cunts, good to see you again, “Justice” O’Cuntpickle!

    Please let me know when she’s dead and can render no more inanities upon an unsuspecting world of innocents.

  8. Rosen doesn’t criticize this statement of O’Connor’s in any way. He just presents it as another example of “how unfortunate it was for the Court and the country that she resigned when she did.” Shouldn’t a liberal like Rosen prefer Alito in at least this one case?

    Let me see if I can explain this:


    1. It doesn’t get any more succinct than that.

      1. O’Connor was appointed by Reagan, who is like the patron saint of Team Red or something.

        If I recall correctly, Reagan ran for office with a pledge that he’d appoint a women to the next vacant SCOTUS seat. I wish he’d promised to appoint a competent woman.

        1. …with big tits.

        2. Go fuck yourself, misogynist scum.

  9. This was the whole point of this fucking post? Selling video games to minors is not at all a clear violation of free speech. Should selling porn to minors also be legal? Blah, blah, blah, I know the talking points, but if you want to give an example of Team Blue blindness this is really a shitty example.

    1. Should selling porn to minors also be legal?

      yes, yes it should.

      btw, who still BUYS porn?

  10. “Liberals” are opposed to free speech except for the specific types of speech that upset conservatives. Political speech, commercial speech, racist speech, anti-Muslim speech?if it doesn’t outrage conservatives, liberals want it controlled.

  11. It is about time all non-liberals start realizing that, bar a few exceptions, liberals have no true ideals other than economic egalitarianism. And even then liberals that are rich themselves are just paying lip service.

    The rest of their so-called ideals are expendable to whatever suits the party-line. If conservatives adopt what was commonly held to be a liberal ideal, liberals will start opposing it (see: anti-war, civil rights etc.)
    They loathe libertarians because they don’t give a fuck about the civil liberties that they would otherwise claim to agree with libertarians on. All they see is “free market = evil”.

    They do not really care about racism, sexism/feminism, gay rights, drug legalization, war/peace, religion, free speech or anything else other than economic egalitarianism.
    They do not care that the poorest Americans are still rich in comparison with some schlub in Africa; they only care that they still have less than the rich. Envy is the only thing that drives them.

    1. This. Conservatives are bad, but Liberals have no redeeming feature.

      1. I don’t know if the average conservative is better or just as bad as the average liberal.

        But there are two things that make me think they are (marginally) better:

        1: They are more prone to be open to libertarianism, whereas the average liberal…forget about it, the free market thing.

        2: They at least have the excuse of their blind faith in a god that orders them around or threatens them with hell.

        1. When you peel back the layers of pretentious morality, liberals and conservatives are nigh unto indistinguishable.

          They may worship gods that go by different names, but the practice of serving Zeus or Jupiter is the same in form and substance.

          1. Yes, except that there’s no serving Zeus or Jupiter – both sides want to be Zeus or Jupiter, and have everybody else serve them.

  12. Last I checked, we hadn’t settled whether the California law actually restricted any speech not involving minors (and I think most of us agree that restrictions on minors being in audiences for certain types of “speech” — nude dancing for instance — are acceptable).

    1. I would agree that parents should be allowed to set restrictions on their children’s behaviour, although some courts disagree with me on this point.

      1. I would say there’s a difference between setting restrictions on a child’s behavior and having the state mandate a standard for all.

  13. “Shouldn’t a liberal like Rosen prefer Alito in at least this one case?”

    A prohibition against selling violent video games to minors is nanny statism at its finest. When are Reason writers going to understand on free speech and drug war type issues, liberals are not with them if they can justify as being for the public good or against corporate interests. How long can the Roots continue fooling themselves that liberals are on their side on any issue with any consistancy? They are starting to look gullible.

  14. Wouldn’t it have been better to find out which way O’Connor would rule on Citizens United and the Westboro Baptist Church case? The video game ban was ridiculous, but the case just seems to have a smaller impact than the other two.

  15. He could not resist mentioning the S. Court’s decision in the 2000 Presidential election after spending most of the article extolling the merits of Republican centrists (when they agree with the left, of course — there was no mention of O’Connor’s dissent in Kelo). I love it. I mean, his punditry is straight out of Central Casting.


    Just beautiful.

  16. nannyism = trump card

  17. You know why every liberal will prefer O’Connor to Alito, no matter how Alito votes on First, Fourth, Fifth, Sixth, and Eighth Amendment cases?

    Hint: It starts with “A” and ends in “bortion.”

  18. Hint: It starts with “A” and ends in “bortion.”

  19. but you don’t read the First Amendment and think that’s what is required

    Yes I do.

  20. Anyone know when courts started talking about everything in terms of speech? I think that this decision and Citizens United would be much better framed in terms of press rather than speech. Freedom of the press, properly interpreted, ought to mean freedom to publish in whatever medium. Distribution of video games is a type of publishing. I think that this would be a much clearer way to deal with such issues than trying to cram everything into “speech”. Speech is a person talking. Everything else is press. Both are equally protected from government censorship. Doesn’t that seem like a much better way to interpret the first amendment?

  21. I don’t understand the courts position. We don’t sell porn to minors. Was there something in the California bill that just outright banned violent video games. I’m still befuddled on the first amendment case.

    1. Basically, previous court precendence has declared sex and nudity to be “special” (some how) and able to be somewhat easily banned. But the court refuses to extend that “specialness” to any other classes of speech, such as violence. This was specifically mentioned in the majority opinion.

      Of course, if sex wasn’t special, things like kiddie porn (at least possession, if not production) would have to be legal, so, yeah, you can see why they bend themselves into a preztel to do this.

      1. Production of child pornography can easily remain illegal do to the fact that there is exploitation of minors involved. They can’t legally consent to the acts.

  22. Two Words:
    Tipper Gore

Please to post comments

Comments are closed.