The Volokh Conspiracy

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The Alito Flag Flap, Snyder v. Phelps, and Chaplinsky v. New Hampshire

The latest reporting from the New York Times intersections with Free Speech cases.


Jodi Kantor of the New York Times has a new report that dives deeper into the Alito flag flap. This work probably should have been done before her initial story ran. Now, we have a lot more context. From my vantage point, I'm not sure much changes. There was a spat between Mrs. Alito and her neighbors, in which she flew the flag upside down as a symbol of distress. I still see nothing to connect Mrs. Alito's decision with some sort of stop-the-steal imagery. But I'm sure "objective observers" will continue to see the "appearance of impropriety" they want to see.

What did interest me is how facets of this neighborly spat intersected with two landmark free speech cases. Sometimes reality is stranger than fiction.

After January 6, the neighbors put up a sign across the street from the Alitos saying "You Are Complicit."

Then came Jan. 6. Rocked by the violence and threat to democracy, the couple soon put up new signs in their yard, saying "Trump Is a Fascist" and "You Are Complicit." Emily Baden said in interviews that the second sign was not directed at the Alitos, but at Republicans generally, especially those who weren't condemning the Capitol attack. . . . .

It's not clear whether Mrs. Alito saw those signs, but the day after the Capitol riot, as the couple parked in front of their home, she pulled up in her car, they said. She lingered there, glaring, for a long moment, recalled the couple, who texted their friends about the encounter.

Who is You? Justice Alito? Or Republicans in general?

This exact argument was at issue in Snyder v. Phelps. Recall that the Westboro Baptists held up a signs saying "God hates you" and "You're going to Hell." Who was the sign referring to? Matthew Snyder? Or society at large? Chief Justice Roberts, per the majority, did not think the sign referred exclusively to the slain Marine, but could have referred to society more broadly. Justice Alito, in his solo dissent, thought the sign clearly referred to Matthew Snyder. Here is the summary of the dispute from 100 Cases:

Justice Alito wrote a solo dissent. He countered that some of the signs were directed at Matthew Snyder. For example, "You're going to Hell" referred to Matthew. In addition to carrying signs at the funeral, Westboro also published a blog post — known as an "epic" — that addressed the Snyder family directly. During oral argument, Justice Alito stated, "The epic specifically referenced Matthew Snyder by name, [and] specifically referenced Matthew's parents by name." He then asked, "Do you think that the epic is relevant as an explanation of some of these arguably ambiguous signs that were displayed at the funeral? For example, 'You are going to hell,' 'God hates you.' Who is 'you'? If you read the epic, perhaps that sheds light on who 'you' is." . . . .

Chief Justice Roberts only considered the signs at the demonstration. He observed that "even if a few of the signs — such as 'You're Going to Hell' and 'God Hates You' — were viewed as containing messages related to Matthew Snyder or the Snyders specifically, that would not change the fact that the overall thrust and dominant theme of Westboro's demonstration spoke to broader public issues." By limiting the facts in this way, Chief Justice Roberts made the case easier to decide than perhaps it was.

I suspect the Alitos thought the "complicit" sign was directed them–in particular at Justice Alito. Trump is a fascist and Justice Alito is complicit. It is rare that we have a Justice's opinion on how to interpret pronouns on protest signs, but we have Snyder v. Phelps.

There is more. It turns out that the neighbor-at-issue never actually saw the upside-down flag!

On Jan. 17, the upside-down flag hung at the Alito household, according to a photograph obtained by The Times. Neighbors say it was up for a few days. If the flag was intended as a message for the Badens, whose home does not have a direct view of the Alito residence, they missed it, they said.

One of the greatest ironies of Snyder v. Phelps is that the family of Matthew Snyder never actually saw the protest signs, which were outside the cemetery. The claim for intentional infliction of emotional distress was premised solely on media reporters of the protest. Here too, Mrs. Alito flew the flag as a symbol of distress, but it never reached its intended recipient.

As is often the case with free expression and symbolism, messages are often missed and misinterpreted–another reason why we should all be cautious and not view the flags in the worst possible light.

There is one more SCOTUS intersection, this time to Chaplinsky v. New Hampshire. In this case, Chaplinsky called a police officer a "damned fascist." The Supreme Court held that these words were "fighting words," and were not protected by the First Amendment. As all know, the fighting words doctrine is basically a dead letter. It plays almost no role in modern First Amendment law. I sometimes joke with my students that in today's coarsened society, no words would justify punching someone in the face. Then again, Justice Alito favorably cited Chaplinksy in Snyder:

This Court has recognized that words may "by their very utterance inflict injury" and that the First Amendment does not shield utterances that form "no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Chaplinsky v. New Hampshire, 315 U. S. 568, 572 (1942); see also Cantwell v. Connecticut, 310 U. S. 296, 310 (1940) ("[P]ersonal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution"). When grave injury is intentionally inflicted by means of an attack like the one at issue here, the First Amendment should not interfere with recovery.

Back to the cul-de-sac. According to the neighbors, Mrs. Alito used similar words as Mr. Chaplinsky:

The conflict then seemed to quiet down. But on Feb. 15, the couple were pulling in trash bins when the Alitos, who seemed to be on a stroll, appeared. Mrs. Alito addressed the pair by name, used an expletive and called them "fascists," the couple told The Times and said in texts at the time. Justice Alito remained silent, they added. The Alitos began to walk away.

In response, the neighbor called Mrs. Alito a word that begins with c- and rhymes with punt.

That was when Emily Baden snapped, she said. She does not remember her precise words, but recalls something like this: How dare you behave this way. You've been harassing us, over signs. You represent the highest court in the land. Shame on you.

Ms. Baden said that she — not her partner, as Justice Alito recalled — used the lewd expression. "I will fully cop to that," she said. A neighbor standing in the street, who asked not to be identified because of the friction on the block, said he heard her say the word too.

Is calling someone an expletive-fascist a fighting word? Does it justify a c-bomb in response? Is calling someone a c-word a fighting word? I can't fathom what was going through Justice Alito's mind when he witnessed all of this unfolding. Pick at random any other graduate from Steinert High School in Trenton, Class of 1968, and call their wife the c-word. See what would happen. Judicial restraint would not be the order of the day. (By chance, the District Court judge I clerked for graduated from Steinert a few years before Justice Alito.)

Anyway, I think this story will have a life so long as it allows people to call for Justice Alito's recusal. I think what we have here is what we had from the outset: an ugly neighborly spat that did not signal the Justice's sympathy with "stop the steal."