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.
can we get a cite on that, so we can draw our own conclusions?
What does it mean to "take down a[ ] ... lawyer"?
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?
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...
Alito cited Prof. Volokh's Rutgers Law Review article on harassment laws and free speech in Saxe.
If you are completely "results-oriented" the decision might reassure you. I happen to agree with the decision. But, the opinion is total crap.
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).