First Amendment

Justice Alito Emerges as ‘America’s Privacy Cop,’ Law Prof Says

Justice Samuel A. Alito Jr. is now “America’s privacy cop,” a law professor asserts.

Writing for the Washington Post, George Washington University law professor Jeffrey Rosen notes that Alito was the lone dissenter supporting community standards of decency in two First Amendment cases. In the most recent case, Snyder v. Phelps, Alito sided with the grieving father of a slain Marine rather than protesters who assert that military deaths are part of God’s punishment for tolerance of gays. In the video case, United States v. Stevens, Alito said he would have upheld a law banning video depictions of animal cruelty rather than protect the rights of those who want to make “depraved entertainment.”

Alito doesn’t always side with privacy interests, but he has emerged as a privacy champion, Rosen says. “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,” Rosen writes. “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.”

Rosen says Alito’s defense of privacy over free speech goes too far for his taste, but his stance should not come as a surprise. In 1971 as a Princeton student, Alito chaired a student conference on data gathering and privacy, which concluded in a report that privacy is too often sacrificed to other values.

Rosen notes two pending cases that pit privacy and community standards of decency against free speech. One concerns a California ban on the sale of violent video games to minors. Another concerns a Vermont consumer privacy law challenged by pharmaceutical companies seeking data from prescription records. Alito appeared sympathetic to the California law, and at least one observer—Marc Rotenberg, head of the Electronic Privacy Information Center—thinks he will vote to uphold the Vermont law, too.

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