Supreme Court Nominee Hard to Pigeonhole

WASHINGTON — Although Democrats have been quick to highlight many of his conservative leanings, especially in cases involving abortion, Supreme Court nominee Judge Samuel Alito is harder to categorize when it comes to free speech and other First Amendment principles.

Clearly a staunch conservative, Alito has nonetheless ruled in some cases during his 15 years on the Third Circuit that liken him more to retiring justice Sandra Day O'Connor than to Antonin Scalia, the ultra conservative judge some say Alito most closely resembles.

“He has a deep understanding of the proper roles of judges in our society,” President Bush said at the White House today. “He understands that judges are to interpret the law, not to impose their preferences or priorities on the people.”

There is evidence to support Bush’s claim.

First off, Alito himself has stressed what he sees as the “limited role” courts play in the constitutional system.

“Federal judges have the duty to interpret the Constitution and the laws faithfully and fairly, to protect the constitutional rights of all Americans, and to do these things with care and with restraint,” he said shortly after his nomination.

Whether or not that will translate into support of issues relevant to the adult entertainment industry remains to be seen, but Alito’s free speech rulings have shown considerable breadth.

In the 2001 case Saxe vs. State College Area School District, for example, two high school students challenged a school district's anti-harassment policy, contending it violated their First Amendment rights. The students believed that the policy prohibited them from voicing their religious belief that homosexuality was a sin.

Writing for the Third Circuit’s unanimous opinion in favor of the two students, Alito said schools do not have the right to punish students for vulgar language or harassment when it doesn't disrupt the school day, arguing that doing so would be a violation of free speech.

“Although the issue at hand was obviously a conservative one at heart, the fact that he ruled based on free speech in this case is important to note,” First Amendment expert and attorney Joel Cohen told XBiz. “It means there’s evidence that expression is an important right to him, which is probably a good sign for people in adult-oriented businesses.”

In 2004, Alito joined in a ruling that said a Pennsylvania law prohibiting student newspapers from running ads for alcohol was unconstitutional. The law had initially been proposed to curb student drinking in the state, but the students argued they had the right to display such ads, as well as the fact that money from alcohol-related advertising helped keep them in business.

“So he has a history of supporting both economic freedom and the freedom to express oneself, ranging from issues of alcohol to religion,” explained Cohen.

Nonetheless, Alito has never hid his conservative side either, especially in the 1991 case Planned Parenthood vs. Casey, when he was the lone dissenter in a case striking down a Pennsylvania law that required women seeking abortions to notify their spouses.

Because of his views on abortion, Democrats have threatened to stop his nomination by using a legislative tactic called a filibuster, or unlimited debate.