WASHINGTON, D.C. – As Judge Samuel Alito’s confirmation hearings in front of the Senate Judiciary Committee crept forward this week, YNOT asked several respected attorneys with deep experience in adult industry-related cases for their impressions of Judge Alito, and the prospects of him becoming Justice Alito on the United States Supreme Court.Our discussions, to borrow a phrase from legal parlance, were “narrowly tailored” for the most part, and addressed the specific questions of where Alito might fall on questions of sexually-explicit speech, First Amendment protections, and other areas of law relevant to the adult industry.

Alito’s record with respect to cases of sexually-explicit speech is very thin; in our research, YNOT found only a single case in Alito’s record directly involving an adult-oriented business – Phillips v. Borough of Keyport (more on that case, and analysis of the Court’s opinion, later in this article). As such, much of the analysis and speculation revolves around Alito’s answer to a question posed by Senator Mike Dewine (R-OH) concerning “the proliferation of pornography on the internet.”

Reed Lee of JD Obenberger and Associates: Lee, who has extensive experience in cases involving First Amendment protections and the adult industry, noted that Senator Dewine asked a very similar question of now Chief Justice Roberts when he appeared before the committee earlier this year, and Lee says that Alito’s reply “strikes me as pretty typical.”

“Alito starts out by basically acknowledging the government’s position,” Lee said, “which is that the question of protecting children from pornography is a ‘compelling interest.’ What I find interesting is that he really focuses on how it’s a ‘difficult problem,’ and says that both Congress and the Judiciary have been ‘struggling with it.’ But, really, the Supreme Court doesn’t seem to have had that much of a problem with it.”

Lee notes that while the Supreme Court has had several cases come before them in which there was concern on the part of the Free Speech community that the court may indeed struggle with the technological and societal implications of the internet as a communications device, the Court “seems to see its (the internet’s) expressive potential, and see it as deserving of full Constitutional protections.”

“The Supreme Court has basically said that restrictions on internet speech should receive the same strict scrutiny one would apply to materials in a library,” Lee said. “So I’m not sure they’re really ‘struggling with it,’ as Alito suggests.”

As for the rest of Alito’s response, Lee saw the answer as something designed to placate both sides of the issue, while avoiding saying anything particularly controversial. Alito distinguished between obscenity (for which there is no Constitutional protection) and pornography, and alluded to the fact that under the law, there are some materials which are not considered obscene for adults, but which are considered harmful for minors – but Alito really said nothing of substance on the issue.

“’Material harmful to minors’ is broader than obscenity for adults,” Lee said. “The problem is, no one really knows how much broader.”

While Lee said on balance he didn’t see Alito’s response as “particularly problematic” in and of itself, he has other reasons why he doesn’t support Alito as a nominee.

“There are lots and lots of reasons why people should be concerned about him,” Lee said. “Given the fact that he’s replacing a moderate, I think he’s too conservative a choice. This President was barely re-elected, by a slim margin, and has no mandate to appoint someone so conservative to replace a moderate on the Court.”

Of particular concern to Lee is the potential for the new court to eviscerate Roe v. Wade without necessarily having to overturn the controversial decision.

“Alito, like Roberts, is very clever,” Lee said, adding that both understand how to modify a law, or place additional regulations and tests within it, without making wholesale, sweeping changes, or overturning precedent.

Jeffrey Douglas, Defense Attorney and Chairman, Free Speech Coalition: A figure who by now should be well-known to all within the adult industry, Douglas said he found Alito’s comments before the committee “troubling in two ways.”

Asserting that “virtually everything Dewine said in his question was wrong,” Douglas noted that Dewine’s question essentially invited Alito to say that pornography is afforded a “second tier” of protection under the First Amendment, a protection not as expansive as, say, political speech. While Douglas said that Alito “didn’t say the worst possible things,” what he did say was reason enough for pause.

Alito’s assertion that states retain additional powers to regulate pornography, within the context of speech for minors being subject to greater restrictions than that of adults, was not so problematic in itself, but what troubled Douglas was Alito’s implicit agreement with Dewine that the internet presented a “problem” which requires the development of new law in order to be addressed.

“Alito basically said that legal mechanisms have to be updated to account for the internet,” Douglas said, noting that Alito did not touch on the fact that the Supreme Court has been reluctant, thus far at least, to impose restrictions on the internet that are similar to broadcast and cable television.

Most alarming to Douglas, however, was something that Alito said during the hearings on a different, but related, subject.

“He refused to agree with the statement that the Constitution is a ‘living document,’” Douglas said, adding that “this is a statement that Roberts had no problem with, by contrast.”

“On the one hand, he says that we need to change the laws in order to account for the development of the internet,” Douglas said, “but on the other, he doesn’t believe the Constitution is a living document, and subject to change? So in other words, the First Amendment is not subject to change, but exceptions to the First Amendment are subject to change? This seems to me a very curious, and very dangerous, position to take.”

Robert Apgood, Carpe Law – Apgood, who has represented numerous adult internet companies including the companies behind major affiliate programs TopBucks and Lightspeed Cash, said he is skeptical regarding Alito, in large part because of apparent shifts in his past positions that have gone unexplained to any real extent.

“I am wary of him,” Apgood said, “primarily because he’s distancing himself from positions he’s had in the past which were fairly axiomatic.”

In Apgood’s opinion, Alito is backing away from positions he has held in the past which are not particularly questionable on their legal merits, likely because he feels it is necessary politically to do so, in order to achieve confirmation.

“I get the sense that he’s saying only what he thinks he needs to in order to be confirmed,” Apgood said, “and really nothing at all about his actual positions or judicial philosophy.” Apgood added that such a rhetorical practice “makes the job of the Judiciary Committee very difficult, if not entirely moot.”

Observing that Alito’s record on sexually-explicit speech is indeed threadbare, Apgood suggested that one might be able to assume certain things about Alito’s attitude based on whom he was nominated by.

“You think, maybe, given everything else they’ve done with regards to the adult industry, the Bush Administration might have verified that this guy is of like mind with regards to porn before they offered him the job?” Apgood quipped. “I think it’s not unreasonable to suggest they’ve already covered this area with him, off-camera.”

The American Civil Liberties Union (ACLU) has also weighed in on Alito’s record, covering a broad expanse of issues, from reproductive rights and abortion issues to questions of civil liberties and various forms of both commercial and non-commercial speech.

The ACLU made it very clear in their report that they feel Alito is qualified for the job, even if they do not endorse him for it. “Judge Alito’s intellectual qualifications are not in doubt,” the ACLU states in its report. “He has a stellar academic record and has held a succession of important government positions throughout his career. His opinions as a judge are thoughtful and, on the whole, cautious. Generally speaking, he operates within existing precedent rather than rails against it.”

Still, the civil liberties organization cautions that some of Alito’s positions, especially with regards to issues of race, religion and reproductive rights, are “particularly worrisome.”

“It is not enough to consider Judge Alito’s record in the abstract,” the ACLU said in its report. “It must be considered in light of the Justice that he will be replacing on the Supreme Court, if confirmed.”

With regard to free speech issues generally and sexually-explicit speech in particular, the ACLU did not appear to be particularly concerned, except with regards to the free speech rights of incarcerated convicts.

“In general, he has applied Supreme Court precedent in a manner protective of the speech rights of students, public employees, commercial entities and those engaging in sexually explicit but not obscene speech,” the ACLU wrote in its report. “He has been less protective of the free speech rights of prisoners.”

The one case directly involving an adult-oriented business, Phillips v. Borough of Keyport, the plaintiff in the case was denied a permit to open an adult book and video store. The man sued, arguing that Keyport’s zoning ordinance which restricted the location of such businesses violated his free speech rights. (Curiously, the district court which heard the case upheld the constitutionality of the ordinance before the Borough of Keyport had even authored a reply to Phillip’s claims.)

In an opinion joined by Judge Alito, the circuit court reversed the district court’s decision, holding that the Bourough “must be required to articulate the governmental interests on the basis of which it seeks to justify the ordinance. It should then have to shoulder the burden of building an evidentiary record.”

On its face, and on balance, this decision was a victory for Phillips, and the case was rightly decided from the perspective of free speech and adult industry advocates. It is worth noting, however, that the district court panel concluded that the Borough needn’t meet that evidentiary burden as of the time the ordinance was enacted; instead, the ordinance would be upheld so long as the Borough could gather the necessary evidentiary record before trial. As Judge Max Rosen highlighted in his dissenting opinion, holding that the legislature need not have the record justifying the regulation of secondary effects prior to the adoption of a zoning ordinance runs contrary to the decisions of most other circuits in the US.

In short, to the extent that Alito’s record gives us any clue as to how he would view some of the significant cases related to the adult entertainment industry that are currently making their way through the courts, it is an incomplete and vague clue that we get, at best. Alito’s past opinions suggest that he won’t stray far from precedent, but that’s not necessarily good news for an industry that has lost its share of court battles in the past.

Alito seems neither a disaster in waiting, nor a godsend in disguise. Whatever the case, you had better get used to the sound of “Justice Alito,” because the one thing on which most legal analysts, spin doctors, political observers and assorted other pundits agree is this: Alito, almost certainly, will be confirmed.