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Monday, November 14, 2005

Alito and Free Speech

Eugene Volokh writes this op-ed in the Wall Street Journal on Alito's likely view of the First Amendment

What would Samuel Alito's confirmation mean for First Amendment law? It's impossible to be sure, but his appeals court opinions give us some clues. A Justice Alito would likely take a pretty broad view of free speech protections; support religious exemptions from some generally applicable laws; uphold evenhanded benefit programs that include both religious and secular institutions; and uphold the use of religious symbolism by the government. • Free speech. Until the late 1980s, liberal Supreme Court justices generally supported broad free speech rights, and conservative justices usually took a narrower view. No longer. I've studied the votes in free speech cases from 1994 (when Justice Stephen Breyer was appointed) until last summer, when Chief Justice William Rehnquist died. The broadest views of free speech were held by conservative Anthony Kennedy, followed by conservative Clarence Thomas tied with liberal David Souter. The narrowest views were held by liberal Justice Breyer, followed by Chief Justice Rehnquist and Justice Sandra Day O'Connor (both conservatives). Justices John Paul Stevens and Ruth Bader Ginsburg (liberals) and Antonin Scalia (conservative) were in the middle. Judge Alito's past decisions suggest that he would be closer to Justices Kennedy and Thomas than to Justice O'Connor. Naturally, those decisions are shaped by Supreme Court precedents; but precedents often give lower court judges some flexibility, and Judge Alito has generally used this flexibility to protect speech.
I hope Volokh is right about that. First Amendment protections are extremely important and I think that they have been degraded signifigantly in recent years, with Campaign Finance Reform being the biggest example of that.


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