Justice Alito Fails Both Constitutional Law and Property Law

Among the more eyebrow-raising statements by Justice Alito in the course of blaming his wife for flying insurrectionist flags was this:

My wife and I own our Virginia home jointly. . . .  She therefore has the legal right to use the property as she sees fit, and there were no additional steps that I could have taken to have the flag taken down more promptly.

The legal right? What legal right? 

Let's begin with the obvious. The First Amendment has no bearing on the claim asserted by Justice Alito because with respect to intra-marital disputes with Mrs. Alito, he is not a state actor.

Suppose that as soon as Justice Alito saw the upside-down flag flying on the flagpole on the property he jointly owns with his wife (as what the law calls "joint tenants") he had said to her: "Sweetheart, can you please take down that flag? As you know, I'm a Supreme Court Justice. Flying it creates an appearance of impropriety that could jeopardize my ability to sit on some cases." Suppose further that she then said: "Nope." And finally suppose that Justice Alito then went out into the yard and took down the flag anyway.

I'll come to the property law issue in a moment, but it should be clear that in taking down the flag, Justice Alito would not have been infringing Mrs. Alito's constitutional right to free speech. When sitting as a Justice, he acts on behalf of the government; when puttering around the yard at home, he does not.

With no constitutional free speech issue involved, the next question is what property law has to say. A little bit of research reveals that Virginia property law is not unusual. Like the law of property in other states, it gives joint tenants an equal right to use their real property but offers virtually no guidance as to what happens when they disagree over how to use it. To see why, imagine a non-expressive use of property.

Suppose that Justice and Mrs. Alito each want to use the driveway at the same time but for different purposes. Justice Alito wants to play a game of H-O-R-S-E with Justice Kavanaugh at the basketball backboard and hoop that overhang the driveway. At the same time, however, Mrs. Alito wants to play doubles pickleball with Ginni Thomas, Jesse Barrett, and Patrick Jackson on that same spot. The Alitos might have an agreement that whoever arrives at the driveway first gets to use it how they wish, but there's nothing in the law of property or anything else that requires such a rule.

Now imagine that Mrs. Alito sets up the pickleball net and then goes to greet her playmates as they arrive. While she is doing so, Justices Alito and Kavanaugh (who was already over at the Alito household having a pre-hoops beer to loosen up) rush outside, remove the net, and begin their H-O-R-S-E game. Doing so might be considered rude, but it hardly violates Mrs. Alito's "legal right to use the property as she sees fit" any more than the setting up of the pickleball net in the first place violated Justice Alito's legal right to use the property as he sees fit.

Is it surprising that the law of property has nothing to say about how to resolve conflicts between joint tenants who have conflicting intentions for how to use their property? Not really. The law does not resolve all sorts of conflicts that might arise between people engaged in voluntary joint projects. So long as the joint tenancy persists, the joint tenants themselves must decide how to resolve conflicts. If those conflicts become irreconcilable, they can end the relationship by severing a joint tenancy or, for married joint tenants, also getting a divorce, but the law rightly assumes that spouses and other joint tenants will work out most of their disagreements on their own.

It is thus clear that Justice Alito was wrong. Neither the First Amendment, Virginia property law, nor anything else gave Mrs. Alito a first-mover veto over what flew on their jointly owned flagpole.

We might ask what a sensible internal policy for joint tenants and others with an equal right to use property they jointly own or cohabit should be. I'll consider two plausible answers.

1) Disagreement results in silence. If one of a group of two or more people wants to put up a display to which someone in the group objects, we might think that the objector should have a veto power. The logic of a Fourth Amendment case--Georgia v. Randolph--has some potential bearing on the analysis as a normative matter, though not as a legal matter. The police asked for consent to search the home of Scott Randolph and Janet Randolph, his estranged wife. Janet gave consent but Scott objected. The police conducted the search and found cocaine that was later introduced as evidence in a criminal case against Scott. The Supreme Court held that the search violated the Fourth Amendment. When both co-owners of a home are present, consent of both is required to grant the police access to the home--at least where the evidence obtained is offered against the co-owner who denied consent. The core idea in Randolph is that each of the occupants of the home is entitled to the privacy that the Fourth Amendment protects.

The same might be said about interests of cohabitants with respect to messages. Suppose Jalen, Donte, and Josh are college roommates. Jalen wishes to tape a "Belieber" poster to the outside of their dorm room door. Donte doesn't mind but Josh objects because he does not want passersby to think that he is a fan of the Canadian monkey-abandoning pop star. As with respect to privacy, so with respect to speech, Josh's interest should prevail. If Jalen wishes to advertise his infatuation with Justin Bieber, he can do so in a way that doesn't implicate his roommates.

2) Disclaimer mitigates mistaken attribution. But wait. What if there is a straightforward way for objectors to distance themselves from a message? In Rumsfeld v. FAIR, the Supreme Court held that law schools could amply protect their interest in avoiding any association with the homophobic message of military recruiters during the period of the don't-ask-don't-tell policy by voicing their disagreement with the policy. Even more directly relevant, Justice Alito's concurrence in the judgment in Shurtleff v. Boston argued that the City of Boston could fully vindicate its interest in avoiding association with a sectarian religious message by loudly disclaiming any endorsement of the views symbolized by flags flown by private groups in connection with events at City Hall Plaza.

Which approach is better? The first one elevates the interest in avoiding false attributions from someone else's speech; the second puts the onus on the objector to make their disagreement known and thereby elevates the interest of the one who wishes to speak. Neither approach is clearly superior in all circumstances. Much depends on the preferences and personalities of the people involved, the likely audience for speech and a disclaimer, and many more contextual factors.

But note one crucial fact: Despite his intimate familiarity with the possibility of a disclaimer, as illustrated by his own separate opinion in Shurtleff, Justice Alito took no steps to disclaim Mrs. Alito's Insurrectionist flag flying when it occurred. Even if he sincerely held his very badly mistaken view of the law of property or an even more mistaken view that the First Amendment governs inter-spousal disagreement, he could have disclaimed Mrs. Alito's views without in any way interfering with her ostensible "legal right to use the[ir] property as she sees fit." That he did not do so speaks volumes.