Jodi Kantor of the New York Times has released a new report that delves deeper into the Alito flag controversy. This investigation probably should have been conducted before her initial story was published. Now, we have a much broader context. From my perspective, I don’t think much changes. There was a dispute between Mrs. Alito and her neighbors, during which she displayed the flag upside down as a distress signal. I still do not see any connection between Mrs. Alito’s actions and any “stop-the-steal” symbolism. However, I’m sure that “neutral observers” will continue to interpret it as they wish.
What caught my attention was how elements of this neighborhood disagreement intersected with two significant free speech cases. Sometimes reality is indeed stranger than fiction.
Following January 6, the neighbors erected a sign across from the Alitos’ residence stating “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 central in Snyder v. Phelps. Remember when the Westboro Baptists displayed signs saying “God hates you” and “You’re going to Hell.” Who were these signs referring to? Matthew Snyder? Or society as a whole? Chief Justice Roberts, in the majority opinion, believed the signs did not exclusively target the slain Marine, but could have been directed at society in general. In contrast, Justice Alito, in his dissent, argued that the signs specifically referred to Matthew Snyder. The dispute is summarized in 100 Cases:
Justice Alito wrote a solo dissent. He argued that some of the signs were aimed at Matthew Snyder. For instance, “You’re going to Hell” was directed at Matthew. In addition to the signs at the funeral, Westboro also published a blog post that directly addressed the Snyder family. During oral argument, Justice Alito pointed out, “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 focused on the signs at the protest. He noted that “even if a few of the signs — such as ‘You’re Going to Hell’ and ‘God Hates You’ — were seen as containing messages related to Matthew Snyder or the Snyders specifically, that would not alter the fact that the overall message and main theme of Westboro’s protest addressed broader public issues.” By narrowing the scope of the facts in this manner, Chief Justice Roberts simplified the case’s resolution.
I believe the Alitos interpreted the “complicit” sign as aimed at them, particularly at Justice Alito. “Trump is a fascist and Justice Alito is complicit.” It is uncommon for a Justice to provide an opinion on interpreting pronouns on protest signs, but we have it in Snyder v. Phelps.
There’s more. It appears that the neighbor in question never actually saw the upside-down flag!
On Jan. 17, the upside-down flag was displayed at the Alito residence, as per a photo obtained by The Times. Neighbors mentioned that it was up for a few days. If the flag was intended as a message for the Badens, whose home couldn’t directly see the Alito residence, they missed it, they stated.
One of the remarkable ironies of Snyder v. Phelps is that Matthew Snyder’s family never actually witnessed the protest signs, which were located outside the cemetery. The claim for intentional infliction of emotional distress was based solely on media reports of the protest. Similarly, Mrs. Alito displayed the flag as a distress signal, but it never reached its intended recipient.
As is often the case with freedom of expression and symbolism, messages are frequently overlooked and misinterpreted, underscoring the importance of caution in not automatically assuming the worst interpretation of flags.
There is another intersection with SCOTUS, this time relating to Chaplinsky v. New Hampshire. In this case, Chaplinsky referred to a police officer as a “damned fascist.” The Supreme Court ruled that these words constituted “fighting words” and were not protected by the First Amendment. As we all know, the fighting words doctrine is practically obsolete in modern First Amendment law. I sometimes jest with my students that in today’s more coarse society, no words would justify physical violence. Nonetheless, Justice Alito referenced Chaplinsky favorably in Snyder:
This Court has acknowledged that words can “cause harm simply by being spoken” and that the First Amendment does not shield utterances that are “not essential to the dissemination of ideas, and have so little social value in the pursuit of truth that any potential benefit is 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) (“Personal insults do not constitute a form of communication or opinion protected by the Constitution”). When significant harm is intentionally caused through an attack like the one in question here, the First Amendment should not impede legal action.
Returning to the neighborhood dispute, according to the neighbors, Mrs. Alito used similar language as Mr.
The dispute appeared to calm down initially. However, on February 15, while the couple were handling trash bins, the Alitos, who seemed to be taking a leisurely walk, approached them. Mrs. Alito directly addressed the couple by name, used an expletive, and called them “fascists,” as reported by the couple to The Times and in texts at the time. Justice Alito remained silent as the Alitos started to walk away.
In response, the neighbor called Mrs. Alito a word that starts with c and rhymes with punt.
Emily Baden admitted that she reacted strongly to the situation. Although she doesn’t recall her exact words, she remembers expressing her disbelief at their behavior and harassment over signs, considering they represented the highest court in the land. She stated that she, not her partner as Justice Alito recalled, used the offensive term. Another neighbor present at the scene confirmed hearing her use the word as well.
Is labeling someone an expletive-fascist considered a provocation? Does it justify using a c-word in return? Is calling someone a c-word considered provocative? It is unimaginable what Justice Alito must have been thinking while witnessing the altercation unfold. Imagine insulting any other graduate from Steinert High School in Trenton, Class of 1968, and using the c-word to refer to their wife. The consequences would likely not involve judicial restraint. (Coincidentally, the District Court judge I worked for graduated from Steinert a few years before Justice Alito.)
Nevertheless, I believe this incident will continue to garner attention as it may prompt calls for Justice Alito’s recusal. Ultimately, this appears to be a heated neighborhood dispute rather than an indication of the Justice’s alignment with “stop the steal.”
