WASHINGTON, D.C. – As the confirmation process for Supreme Court Justice nominee Samuel A. Alito grinds slowly forward, speculation concerning his views on a wide variety of issues is blooming in the media. Whether it’s the divisive, hot-button issue of abortion, or his take on the use (and definition) of “torture,” everybody wants to know – What Would Sam Do?With the Extreme Associates case winding its way through the justice system, and a date with the Supreme Court a distinct possibility, it’s a question that the adult industry should be pondering as well. As has been discussed by many adult industry figures and First Amendment specialists in the legal profession, US v. Extreme Associates has “landmark case” written all over it.

While prophesizing future decisions and gauging the outlook of a potential Justice is always tricky, and such judicial fortune-telling often turns out to be wildly inaccurate (paging Justice Souter…), it can be instructive to look at the history of a Judge’s opinions, rather than simply assuming the nominee will fall in party-line with the man who appointed him.

The first thing that has to be noted about Alito with respect to cases involving sexually oriented speech is the relatively small involvement he has had in such cases, when one considers that several very significant cases have been decided by the 3rd Circuit since the mid-90’s. These cases include ACLU v. Reno (1997), in which a three judge district court shot down the Communications Decency Act (CDA) as a violation of the First Amendment; the invalidation of section 505 of the Telecommunications Act of 1996 by way of Playboy Entertainment Group, Inc. v. United States; and the 3rd Circuit has twice held that the Child Online Protection Act (COPA) fails to pass the Constitutionality test. (The 3rd Circuit heard arguments in US v. Extreme on October 19th, and their decision is pending)

While Alito did not preside over, or write opinions for, any of the seminal cases listed above, he has been a part of several cases that involve zoning restrictions on adult oriented businesses, and regulation of nude dancing establishments. As pointed out in an excellent analysis by Robert Corn-Revere, a partner at Davis Wright Tremaine in Washington D.C. (who was also one of the attorneys representing Playboy in Playboy Entertainment Group, Inc. v. United States), Alito’s opinions would hardly bring smiles to the faces of those of us in the adult industry, though they aren’t far removed from the opinions of the Justice he would replace – Sandra Day O’Connor – on similar issues.

“Although he has expressed a narrow view of substantive due process and the irreparability of First Amendment harms, as well as the government’s burden of proof in bookstore zoning cases, his limited writings in this area do not set him far apart from most judges on the 3rd Circuit or — importantly — from Justice O’Connor,” Corn-Revere wrote in his analysis on firstamendmentcenter.org.

As part of the support of this assertion, Corn-Revere points to Phillips v. Borough of Keyport for which Alito wrote an opinion when the 3rd Circuit decided the case in 1997, and City of Erie v. PAP’s A.M. which O’Connor heard as a member of the Supreme Court in 2000. The cases, while not identical, both involved sexual expression, and the opinions scribed by Alito and O’Connor show some definite similarity in thinking.

In Phillips v. Borough of Keyport, the 3rd Circuit found that the Keyport government had not met its burden of proof to justify an ordinance requiring a 500 foot buffer between adult bookstores and churches, playgrounds and residences. The court ruled that the zoning measures are justified based strictly on the notion of “secondary effects” of adult bookstores, not based on the content of the books and other materials sold, and further held that it would “reduce the First Amendment to a charade in this area” if the government were not required to at least identify the alleged secondary effects with some specificity, offer some evidence to prove the existence of such effects, and demonstrate their ordinance would serve to improve the supposed problem.

In Phillips, the court also held that the local ordinance had to provide alternative conduits for adult entertainment, and that the applicants who had been denied licenses for adult bookstores might be able to make out a substantive due-process claim, if they could prove that local officials denied or delayed their license applications simply out of a “distaste for the content of expression.” The court emphasized that the “right to substantive due process conferred by the Fourteenth Amendment includes the right to be free from state and local government interference with constitutionally recognized fundamental rights.”

In his analysis of Alito’s opinion, Corn-Revere notes that while Alito agreed with the “main thrust” of the court’s opinion, he dissented from their holding on substantive due process.

“Alito concurred with the majority on the principal First Amendment claim, but it is important to note that the court in Phillips did not adopt a broadly speech-protective view with respect to the government’s burden of proof,” Corn-Revere writes. “As Judge Max Rosenn pointed out in his dissenting opinion, the holding that a legislative body need not have a record justifying the regulation of secondary effects before a zoning ordinance is adopted is contrary to decisions in most other circuits.”

For her part, O’Connor’s thinking in terms of the government’s burden of proof where speech issues are concerned is no more likely to garner approval from staunch advocates of free speech, either.

When the Supreme Court heard City of Erie v. PAP’s A.M in 2000, the court upheld a ban on nude dancing in Erie, even though there was no evidence presented of actual secondary-effects problems, and all the justices conceded that requiring dancers to wear pasties and G-strings would have no real effect on society. In writing for the plurality, O’Connor wrote, “In the absence of any reason to doubt it, the city’s expert judgment should be credited.”

In City of Los Angeles v. Alameda Books, O’Connor wrote an opinion upholding a zoning ordinance in Erie which targeted adult businesses. O’Connor held that the city did not need to produce separate studies to justify the regulation of “multiple use adult establishments,” writing that cities may rely on “any evidence that is ‘reasonably believed to be relevant’” because there isn’t a “high bar for municipalities that want to address merely the secondary effects of protected speech.”

In the end, as with all the other speculation as to where Alito’s mindset falls with respect to the contentious legal issues of our times, the evidence here is hardly what one could call conclusive. While there seems little reason for any free-speech advocate to be excited by the prospect of Justice Alito, there also seems no reason to suspect he would shift the balance of the court in a radically conservative fashion, either.

“Though First Amendment advocates might wish for a new justice who has the same inclinations on First Amendment matters as Justices Anthony Kennedy or David Souter,” Corn-Revere concludes in his analysis, “it appears unlikely that Judge Alito will significantly shift the balance of the Supreme Court in this area of the law if he is elevated.”