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.
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