My Wall Street Journal piece on the subject is now online. One quibble: The subhead says "Judge Alito has an expansive view of the First Amendment," but to be precise he seems to have a relatively expansive view of the Free Speech Clause and the Free Exercise Clause, and a somewhat narrower view of the Establishment Clause. (The body of the article makes that clear.)

Interesting and informative article. However, I'd also be interested in hearing you expand on this statement: "And he seems to lean toward viewing religious speech by the government--part of a longstanding American tradition--as constitutionally permissible, too." Are you referring to the display case, or something else?
11.13.2005 12:30pm
Al Maviva (mail):
Ahh, at last something the MSM can sink its teeth into. Monday's above-the-fold headline in the NYT:

"Alito, Like Bork, Lukewarm on First Amendment"

Which is rather like the Times' stance on blogging, now that I think about it.
11.13.2005 1:11pm
Very intersting article and shed good light on the direction that Judge Alito mat move the court if/when confirmed. This is the type of critique that we need to see more of about appointees. It is a shame that some do not relly look at a person and thier views as openly as this.
11.13.2005 1:12pm
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.

Couldn't this have more to do with what cases are up in the SC (e.g., my impression [and quick read from people like Tushnet] is that commercial/business speech cases have grown in number over that period, while protestor cases have fallen in number)? If more commercial cases (or other cases dealing with monied interests free speech matters, or cases striking down hate speech regulations, or cases dealing with abortion protestors, etc.) have dominated the docket, couldn't that be the reason for the switch? I.e., it isn't the (neutral) doctrine but the results.

Free speech absolutists may switch sides for all sorts of reason (this often makes porn commercial speech cases interesting areas of review).
11.13.2005 2:56pm
Eugene Volokh (www):
Medis: Yes, it's basically an inference from the display case, though a weak inference.

Q.: Your theory is interesting, and it may fit the facts for some cases, such as religious speech cases, campaign finance cases, and some abortion picketing cases, but those are a fairly small part of the Court's free speech docket (hate speech cases are a negligible part). For instance, commercial speech cases came at a pretty steady pace from the mid-1970s to now; at the outset, the supporters of fairly narrow protection were Rehnquist and often O'Connor and Burger, who were pretty conservative. The liberals generally supported pretty broad protection. Today, Kennedy and Thomas have joined the pretty broad protection camp, and Souter and Breyer have joined the pretty narrow protection camp; plus Scalia has moved from narrow protection in the mid-1980s to somewhere closer to the middle. Likewise, historically the conservatives have taken a narrow view of protection for sexually themed speech; Kennedy and Thomas, on the other hand, take a broader view.
11.13.2005 6:44pm
b.trotter (mail) (www):
An excellent article. For me personally, it reinforces my view that Alito is an excellent choice (certainly better than Harriet Miers). Right now, the morass of rulings on the 1st amendment are so confusing that I don't see how it's possible to properly comply with all of them at the same time.

I am curious, if this libertarian view spreads into other areas of his judicial record? (For example rulings on States rights vs. Federal rights).
11.14.2005 12:40am