Professor Epstein is right to shine a light on the Court’s decisions and analysis in the recent free speech cases, Snyder v. Phelps and Brown v. Entertainment Merchant Association. In each case, the Court embraced unnecessarily absolutist interpretations of the constitutional right to free speech. I say “unnecessarily” absolutist because, in my opinion, the Court’s most glaring failure in each case was its refusal to grapple seriously with factual circumstances presented in each case. And in each case, Justice Alito’s separate opinion demonstrates a much more sensible approach to handling difficult facts.

Take Brown, the video game case. The State of California had enacted a law limiting minors’ access to video games depicting acts of “killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted” in a manner that a “reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors,” that is “patently offensive to prevailing standards in the community as to what is suitable for minors,” and that “causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.” The Court, in an opinion written by Justice Scalia, held that video games content is fully entitled to First Amendment protection, and that California failed to justify its statutory restrictions in a manner necessary under First Amendment precedents.

Justice Alito (joined by Chief Justice Roberts) concurred in the judgment; he found the statutory standard to impermissibly vague, but instead of ejecting the states altogether, through a broad First Amendment rule, he would have left the states to try to craft a better statute.  More importantly, he pushed back very strongly against the Court’s presumption that video games enjoy the same degree of First Amendment protection enjoyed by books and films. (And here I risk reiterating what I have written elsewhere.) His opinion highlighted the substantial factual differences between books and interactive, hyper-violent video games:

the Court is far too quick to dismiss the possibility that the experience of playing video games (and the effects on minors of playing violent video games) may be very different from anything that we have seen before. Any assessment of the experience of playing video games must take into account certain characteristics of the video games that are now on the market and those that are likely to be available in the near future. Today’s most advanced video games create realistic alternative worlds in which millions of players immerse themselves for hours on end.

Justice Alito’s concurrence documents and explains these factual distinctions, from the games’ disturbing violence (“The objective of one game is to rape a mother and her daughters; in another, the goal is to rape Native American women”) to their immersive, interactive nature (“While the action in older games was often directed with buttons or a joystick, players dictate the action in newer games by engaging in the same motions that they desire a character in the game to perform”).

Yet the majority’s opinion offers no serious response. Instead, it chastises Justice Alito for undertaking “independent research” intended “to disgust us,” and then asserts, a priori, that the differences between modern video games and older forms of literature “are not constitutional” differences. Why are those differences not relevant to the First Amendment inquiry? The Court does not explain why; it presumes that prior grounds for limiting free speech and the press are the exclusive limits.

And then the majority opinion goes still further, attempting to minimize, even belittle, the differences between old books and new video games:

Certainly the books we give children to read—or read to them when they are younger—contain no shortage of gore. Grimm’s Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers “till she fell dead on the floor, a sad example of envy and jealousy.” . . . Cinderella’s evil stepsisters have their eyes pecked out by doves. And Hansel and Gretel (children!) kill their captor by baking her in an oven. . . . And Golding’s Lord of the Flies recounts how a schoolboy called Piggy is savagely murdered by other children while marooned on an island.

As for modern video games “interactive” character …

California claims that video games present special problems because they are “interactive,” in that the player participates in the violent action on screen and determines its outcome.  The latter feature is nothing new: Since at least the publication of The Adventures of You: Sugarcane Island in 1969, young readers of choose-your-own adventure  stories have been able to make decisions that determine the plot by following instructions about which page to turn to.

As it happens, Professor Salamanca’s response to Epstein puts the very same points much more succinctly: “The First Amendment protects the Iliad, with all of its gruesome violence. So too would it protect a film of the Iliad. And so too would it protect a video game derived from the epic.”  As an “artistic medium,” he suggests, “video games are an extension from film, just as film was an extension from plays, novels, and epic poems.”  But what is an “extension?”  Can an “extension” ever “extend” too far?  If a new medium’s character threatens very different real-world effects, then why must we set those considerations aside, and fall back on categorical shortcuts that assume away the very questions before the Court?

The Court’s opinion—and Justice Alito’s dissent—in Snyder, the military funeral protest case, reflects the same trends.  There, as in Brown, Justice Alito focused on a factual distinction that, he argued, materially distinguished the case at bar from the precedents relied upon by the Court.  Specifically, the jury had found that the protests at issue in Snyder resulted in specific harms suffered by Mr. Phelps.  The majority opinion (again written by Justice Scalia) sought to minimize the fact of injury, first by re-characterizing the injury as something less (“speech cannot be restricted simply because it is upsetting or arouses contempt”), and then by asserting that previously-recognized justifications for limiting speech, which did not reach intentional infliction of emotional distress, are the exclusive justifications for limiting speech.  Justice Alito, by contrast, urged that the fact of harm placed the case closer to physical assault than to traditionally protected speech, for First Amendment purposes; the Court brushed these factual questions aside.

As it happens, the current Supreme Court Term has offered two more illustrative examples—again in cases dividing Justices Scalia and Alito.  In United States v. Jones, the Court divided in several directions over the question of police officers’ use of GPS tracking devices and the Fourth Amendment. Justice Scalia’s opinion for the majority attempts to force-fit an unprecedented new type of government monitoring—high-tech satellite-based GPS devices—into old trespass-centric theories of unconstitutional “search” originating in the 18th Century, minimizing the differences between old technologies and new ones: “it is quite irrelevant whether there was an 18th-century analog. Whatever new methods of investigation may be devised, our task, at a minimum, is to decide whether the action in question would have constituted a ‘search’ within the original meaning of the Fourth Amendment.”  Justice Alito, by contrast, looked ahead to a brave new world of computer-enhanced search technology, urging the court to allow for new constitutional norms, doctrines, and categories to emerge, first and foremost through experimentation in the states.

Finally, in Maples v. Thomas, the Court excused a capital criminal defendant’s procedural default when his lawyers engaged in an extreme degree of negligence: his attorneys left their firm while his post-conviction appeals were pending; they failed to inform him of this; they did not ask the court for leave to withdraw; the firm they left behind did nothing to pick up their work; the court’s mail to the firm was returned, unopened; the court attempted no further follow-up; and the defendant’s local lawyer ignored the court’s order.  “Under these unique circumstances,” Justice Alito concurred, “I agree that petitioner’s attorneys effectively abandoned him and that this abandonment was a ‘cause’ that is sufficient to overcome petitioner’s procedural default.” The case presented “a veritable perfect storm of misfortune, a most unlikely combination of events that, without notice, effectively deprived petitioner of legal representation.”

In dissent, Justice Scalia disagreed, concluding that the defendant had not been abandoned, because the prior law firm remained available to act if contacted by the defendant. And to this he added a slippery-slope argument that, once again, dramatically undermines the novel facts before the Court: “if the interest of fairness justifies our excusing [the defendant’s] procedural default here, it does so whenever a defendant’s procedural default is caused by his attorney.” Of course, neither the majority nor Justice Alito’s concurrence was urging the excusal of any procedural default caused by the attorney; rather, as Justice Alito stressed, the Court was accommodating truly unique facts that presented an inequity far beyond that seen in prior cases.

These cases reflect Justice Alito’s greater willingness to stop short, conclude that particular facts present a context so different from that of prior precedents, and decline to extend old precedents to reach the new facts.  And often, Justice Alito urges the Court to allow states and local communities to react to the new facts and circumstances, either through legislative experiment or in common law adjudication, to strike a new balance between liberty and regulation, between power and rights.

As I argue in my previous article, this approach appears to be rooted, at least in part, in the writings of Alexander Bickel, who argued that judicial imposition of counter-majoritarian rights is justified only so long as the Court’s work is rooted in practical experience and tradition, and only so long as the Court withholds broad constitutional rules until after states and local communities have had the opportunity experiment in striking difficult balances.

In that respect, Bickel sought to vindicate his own pair of seemingly opposite influences: the Progressive jurisprudence of Holmes and Brandeis, and the temperamental conservatism of Edmund Burke.  Progressive jurisprudence had no shortage of vices, of course, but it had at least one virtue: a willingness to concede that a new case could threaten to stretch even well-established doctrines past the breaking point, requiring re-evaluation and limitation of the old doctrine. Holmes hinted at this tendency in his first law review article, when he wrote, “it is the merit of the common law that it decides the case first and determines the principle afterward.”  But the best explanation of this “conservative” approach came from Judge Cardozo, in The Nature of the Judicial Process (which is helpfully excerpted in the new issue of The Journal of Law, a sister journal to the popular Green Bag), who wrote of the task of the judge in cases where a given principle or precedent is “pushed to the limit of its logic”:

Every new case is an experiment; and if the accepted rule which seems applicable yields a result which is felt to be unjust, the rule is reconsidered. It may not be modified at once, for the attempt to do absolute justice in every single case would make the development and maintenance of general rules impossible; but if a rule continues to work injustice, it will eventually be reformulated. The principles themselves are continually retested; for if the rules derived from a principle do not work well, the principle itself must ultimately be re-examined.

This seems to echo Justice Alito’s judicial temperament: a willingness to decide that Grand Theft Auto might not be “Hansel and Gretel”; that verbal attacks intentionally inflicting emotion distress are different from political stump speeches; that a “perfect storm” of attorney negligence might go beyond run-of-the-mill attorney foul-up; that the 21st Century might bring about surveillance capabilities lacking any meaningful 18th Century analogs—and that those differences are relevant to a judge’s work.

At risk of quoting yet one more liberal in support of Justice Alito’s conservative jurisprudence, I would borrow the aphorism often attributed to Lord Keynes: “When the facts change, I change my mind. What do you do, sir?”  The last few years suggest that Justice Alito is particularly willing to ask that of himself, and of his brethren.