Justice Samuel A. Alito’s Lonely War Against Abhorrent, Low-Value Expression: A Malleable First Amendment Philosophy Privileging Subjective Notions of Morality and Merit

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A trio of U.S. Supreme Court rulings during its most recent two terms demonstrates that Justice Samuel Anthony Alito, Jr. is no friend to expression that offends his personal sense of both morality and substantive merit. In fact, he might be the justice most prone to censor offensive speech on today’s High Court.

In April 2010, the Supreme Court in United States v. Stevens struck down on First Amendment overbreadth grounds a federal statute targeting crush videos. Although the content of such videos is pruriently repugnant, as they “typically show scantily dressed women stomping rats, mice, hamsters or insects,” the High Court nonetheless declared the federal law unconstitutional.

Justice Alito, however, found himself isolated in Stevens from his eight colleagues on the Court as the lone dissenting justice. Justice Alito, in fact, would have gone so far as to carve out a new category of unprotected speech, opining that “crush videos are not protected by the First Amendment.”

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