Alito May Support Media Deregulation, Free Speech, Say Lawyers

In the 2004 case, Alito rejected a Pa. law that banned alcohol ads in college newspapers as unconstitutional, said media accounts. “If government were free to suppress disfavored speech by preventing potential speakers from being paid, there would not be much left of the First Amendment,” he said. In Saxe v. State College Area School District, Alito ruled the district was out of bounds in its use of an antiharassment policy because “there is no categorical ‘harassment exception’ to the First Amendment’s Free Speech Clause.” One law professor described the judge as a libertarian. “He’s had a long, great number of discrimination cases,” said Jonathan Turley, who teaches law at George Washington U. “Alito has a libertarian influence that will probably make him attractive to businesses in general. Libertarian tend to favor the market over government regulation.” Referring to the alcohol ad case, he said it “reflects as much his libertarian tendencies as much as his Constitutional views. Even as a free speech case, Alito appears to come from a school favoring the market over regulation.”

Alito was complimented on his competence and careful approach by some media industry officials, and he’s likely to support commercial speech. Alito’s history may help smooth the way in Senate confirmation hearings, the media industry official said. “I think he’s already indicated that the court owes considerable deference to the Congress,” the official said, adding that may help his prospects in the Senate. “He is a very, very careful jurist, who I am told by people who are much more familiar with his work is very, very careful about precedent,” the source added. In TKR Cable Co. v Cable City Corp., a 3- judge panel including Alito found that a seller of cable descramblers couldn’t be held liable for certain damages because it didn’t intercept radio communications.

Some are concerned about Alito’s stance in media cases, where his history isn’t extensive. One source mentioned that, while the judge supports free speech, he may take a hard line on indecency. “He doesn’t have much of a record in media cases and doesn’t get a lot of media cases,” said Media Access Project Exec. Dir. Andrew Schwartzman. “He is going to be deregulatory -- of course it’s not a good thing,” said Schwartzman, whose group pushes for media reform. “My opposition to Judge Alito is on the basis of his perspective, not on the basis of his qualifications in terms of competence.”

Alito seems to have left few footprints in the telecom industry. “Outside D.C. Circuit, they don’t have the same concentration of telecom cases, so it wouldn’t be strange for him not having done a lot,” said a former law clerk on the 3rd Circuit, where Alito serves.

Alito in 2002 concurred in N.J. Payphone Assn. v. West N.Y. (No. 01-1917), a 3rd Circuit ruling affirming a decision that Sec. 253 of the Telecom Act preempted an ordinance. The ordinance let the town grant an exclusive franchise to one or 2 payphone providers to offer telephone service on public rights of way. In 2003, Alito also joined U.S. Appeals Court, San Francisco, Judge Cynthia Holcomb in a ruling that revived WorldCom’s $3.4 million breach of contract suit against Graphnet after 2 groups of dissident creditors abandoned their challenge to the company’s reorganization plan in exchange for a combined payout of more than $400 million.

“The big change is that Sandra O'Connor would be leaving the court because generally she has in the past recused herself from telecom decisions, and her replacement would yield a fuller court to address telecom issues,” said Precursor Group CEO Scott Cleland. “From the policy standpoint, an Alito addition is just a reinforcement of the Brand X regulatory hands-off direction.” -- Jonathan Make; Susan Polyakova