Alito and the Supremes

Jerold Citron
With the Jan. 31 confirmation of Justice Samuel Alito, many, including those in the adult industry, are speculating on his effect on the Supreme Court and particularly his effect on freedom of speech issues. At first glance, many might see the conservative Alito as a threat to adult content on the Internet and freedom of speech, yet Alito's real record and personal beliefs paint a more mixed picture.

Although Alito has held very conservative views on abortion rights and search-and-seizure laws, his conservatism is more of a liberation flavor. In Alito's youth he actually led a student conference at Princeton University favoring gay rights. He stated at the time that "no private sexual act between consenting adults should be forbidden."

This statement points to an Alito brand of conservatism that is Libertarian. Of course, Libertarian views generally favor an unregulated adult industry. What is more important, though, is that Alito's siding with gay rights shows that his "moral outrage" towards pornography might not be sufficient for him to abandon his Libertarian paradigm.

Alito's tolerance of sexual content also was illustrated in the more recent Saxe vs. State College Area School District. In that case, with the majority, he struck down an overly broad sexual harassment policy. In his opinion, he wrote, "No court or legislature has ever suggested that unwelcome speech directed at another's ‘values' may be prohibited under the rubric of anti-discrimination."

Alito, Sexuality
Alito doesn't seem queasy either when tackling cases that involve sexuality. In a dissent to the opinion Doe vs. Groody, Alito upheld the right of officers to strip search a 10-year-old girl simply based on a search warrant. This dissent paints a judge who is not easily swayed by sexual imagery or moral arguments, and thus a judge who might side with the adult industry based on his Libertarian principles.

In another decision, In U.S. vs. Rybar, Alito dissented and declared a Reagan-era law banning possession of machine guns as unconstitutional. This put him unwittingly on the same side as child pornographers who were struck down in another appeal using arguments from the same U.S. vs. Rybar case. In the pornography appeal, similar to Alito's argument, it was argued that Congress lacked the Commerce Clause authority to ban possession of child pornography.

These rulings suggest that Alito might be a more favorable Supreme Court pick for freedom of speech and sexuality issues than other conservatives. Yet it is well known that groups generally opposed to the adult industry supported Alito, such as the Family Research Council, Jerry Falwell and Reverend Lusk, a friend of George Bush who proudly proclaimed that Alito would "appoint people to the justice system that would be attentive to the needs I care about — stopping same-sex marriage, assisted suicide and abortions for minors and supporting prayer and Christmas celebrations in school."

Do these decisions mean that Judge Alito is indifferent to pornography? Hardly. Judge Alito is an Italian Catholic and very conservative. Mike Papantanio of Air America said of the Alito confirmation, "these people want to establish a theocracy." If this view of Alito is correct, then this is ominous news for the adult industry in the long run.

For instance, Alito's views on state's rights would be frightening to any ISP providing adult content. Alito asserts, "It is the states, and not the federal government, that are charged with protecting the health, safety and welfare of their citizens."

He has used this assertion primarily to limit the Environmental Protection Agency and the Clean Water Act. Yet the implications of this statement could allow 50 different Internet pornography standards, one for each state — standards that adult webmasters would have to simultaneously follow.

Providers of adult content on the Internet, by definition, need to be aware of the states' rights argument and state laws. For one, the Internet was created by the federal government and by its nature has no specific geographic location. DARPA, the government agency that designed the Internet, designed it as a multi-node system in case of nuclear war. Yet with 50 states trying to assert power over the Internet, the very nature of the Internet is threatened.

If Alito were to join together with the other conservatives to allow states the power to control adult content, adult content providers would have a nightmare on their hands. Instead of one Internet standard, there would be 50 virtual Internet standards somehow based on the origin of the customer.

For instance, in 1998, New Mexico adopted Section 30-37-3.2(A) of the New Mexico Statutes Annotated, which banned Internet material that may be "harmful to minors." After many groups, including the ACLU, applied for an injunction, it was upheld by the 10th Circuit, which asserted that the state law violated the federal Constitution and the Commerce Clause.

It could be argued that states' rights advocates like Alito, who interprets the Commerce Clause narrowly and feels it is a state's obligation to protect its citizens, might uphold a law similar to the 1998 New Mexico law that threatened free speech and adult content on the Internet.

Alito: Pro-Adult?
Luckily for adult content providers, Alito is a corporatist. He has, in most cases, sided with business over the individual. Because the adult industry is a multi-billion-dollar industry, it is likely Alito would lean more toward compromise rather than allowing state laws to crush an industry.

In a decision, Pitt News vs. Pappert, Alito sided with the free speech rights of beer companies and struck down a state law banning alcoholic advertisements in college newspapers. This again points to Alito's pro-business stance and his reluctance to be easily swayed by moral arguments, thus a judge more likely to rule in favor of adult content providers.

In conclusion, Alito is a conservative dream judge on the hot issues of prayer in school and abortion rights, yet he has shown an unwillingness to bend his Libertarian views to simple moral arguments.

Alito tends to be pro-business in most of his rulings, thus the adult industry has probably dodged a bullet with his appointment to the Supreme Court and his blessings by the Conservative Right.

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