JUSTICE ALITO'S FREE SPEECH JURISPRUDENCE

When President George W. Bush nominated Samuel Alito to fill a seat on the Supreme Court of the United States in the fall of 2005, the right was amid a libertarian turn on freedom of speech and the First Amendment. An earlier generation of postwar conservatives had a distinctly ambivalent view about the First Amendment. While the core idea that freedom of speech is an important value and should be protected was broadly shared in the mid-twentieth century, conservatives were often quite critical of the ways in which the Court expanded the scope of protections for free speech in those years, not to mention the ways in which free speech was often being exercised by activists and artists on the political left. Free speech controversies routinely revolved around conservatives calling for restrictions on expressive activity, and conservative politicians not infrequently made hay out of art and speech that offended popular sensibilities. Prominent conservative legal scholars like Robert Bork and Walter Berns argued for a more restrictive approach to the First Amendment than the Court had been taking.· 1By the turn of the twenty-first century, things had become more complicated. The Federalist Society now features a "Freedom of Thought Project" to foster greater consideration of the collapsing "social consensus on the importance of being able to say controversial things."2 Its annotated bibliography of conservative and legal scholarship designed to introduce students and scholars to legal thought on the right pairs traditional conservative voices like Bork and Berns with more libertarian voices like Eugene Volokh and Michael Kent Curtis.3 Jurists and politicians on the right have become vocal, if not always consistent, proponents of a robust view of free speech values and associated legal protections,4 even while a new generation of conservative scholars and activists now complain about an excessive libertarian influence over the conservative legal mind.5 The most prominent current free speech advocacy group is now the Foundation for Individual Rights in Education (FIRE), as the American Civil Liberties Union (ACLU) has retreated from its traditional commitments on that front, and FIRE is routinely denounced from the left as a "right-wing" group.Justice Alito reflects that generational transition in the conservative legal movement. At his confirmation hearings in January 2006, then-judge Alito was pressed hardest on First Amendment questions by Ohio Republican Mik