WASHINGTON — Supreme Court nominee Samuel Alito expressed strong support for freedom of speech in the public square during his confirmation hearings yesterday before the Senate Judiciary Committee.
Responding to questions from Sen. Mike DeWine, R-Ohio, the judge also addressed limits on free speech in public and discussed legal distinctions that have been drawn between commercial speech and political speech.
DeWine endorsed the American tradition of expressing opinions on public issues "by turning to the public square," but said governments in recent years had begun "a disturbing trend" of restricting public speech. He noted a number of examples, including restrictions on political yard signs, limiting protests to free-speech zones, and a case in which "a Wisconsin woman was kicked off a city bus when she tried to distribute a book containing Bible stories to individuals sitting next to her."
Asked how he would weigh cases involving such restraints, Alito said, "I think that freedom of speech and freedom of the press and all the freedoms set out in the First Amendment are matters of the utmost importance.
"Freedom of speech is not only important for its own sake, but it is vital to the preservation of our form of government."
Alito suggested that his approach would follow that of the Supreme Court's public-forum doctrine, in which the Court has defined a public forum as "something like a public street, where people's ability to speak is at the maximum."
He also discussed limited public forums — "places where people can speak freely, but only at particular times on particular subjects, a place that's dedicated to free speech, but only on a particular subject, for example."
"And even in a limited public forum," Alito said, "what government cannot do is engage in viewpoint discrimination.
"If the government opens up a particular forum for discussion of a particular subject, you can't say, 'But we're only going to allow people who express this viewpoint and not another viewpoint.'
"Viewpoint discrimination really goes to the heart of what the First Amendment is intended to prohibit," Alito said.
DeWine then turned to the issue of commercial speech, noting that it "has never had the same level of protection as other forms of speech, such as political speech" and adding, "The difference in treatment has puzzled a number of commentators and judges."
In The Pitt News v. Pappert, Alito wrote the 3rd U.S. Circuit Court of Appeals panel opinion striking down a Pennsylvania statute forbidding paid ads for alcohol in college newspapers. DeWine asked for the judge's views on "the distinction between commercial speech and noncommercial speech."
Without expressing an opinion for or against protecting commercial speech, Alito said part of the legal theory behind the differences in treatment "is that commercial speech is more durable. ... In other words, there's such a great incentive for people who are selling things to engage in advertising and other forms of commercial speech, that it's less likely to be driven out than speech on other issues where the financing may not be as extensive."
Alito said his court struck down the state statute because it was not narrowly tailored enough, unfairly singling out a student publication when other publications were not restricted in the same way.
On other topics, Alito said Americans had a right to designate family members or friends to carry out their right-to-die wishes, an issue pushed to the forefront last year by the case of a brain-damaged Florida woman.
Sen. Patrick Leahy of Vermont, the ranking Democrat on the Judiciary Committee, cited the case of Terri Schiavo, the Florida woman who was at the center of a fierce fight between her husband and family over her fate that involved the courts, Congress and even the president.
Leahy asked: If a person has a living will, could he designate someone to decide whether to use extraordinary measures to keep him alive?
"Yes, that's, I think, an extension of the traditional right that I was talking about that existed under common law, and it's been developed by state legislatures, and in some instances, state courts to deal with the living will situation and advances ... in medical technology, which create new issues in this area," Alito said.
Schiavo suffered a brain injury in 1990 that left her in what some doctors called a "persistent vegetative state." Her parents sought to keep her feeding tube in place while her husband wanted to have it removed, citing her wishes and setting off a bitter court battle.
Congress, Florida Gov. Jeb Bush and his brother, President Bush, all sought to have the feeding tube reinserted. Schiavo died on March 31.
Sen. Arlen Specter, the committee's chairman, opened today's session by announcing that an examination of hundreds of documents from the founder of a controversial college alumni group found no mention of Alito.
The federal judge's membership in Concerned Alumni of Princeton, which discouraged the admission of women and minorities at the Ivy League school, has been a divisive issue at Alito's confirmation hearings.
The questioning so far seems to have done little to alter Alito's prospects for a seat on the Supreme Court, with Republicans confident that the conservative jurist is well-suited for the job while skeptical Democrats warn that President Bush's nominee could help overturn abortion as a federally protected right, sending the issue to the states.
Bush selected the 55-year-old appellate court judge to replace Justice Sandra Day O'Connor, who has been a decisive vote on issues such as abortion, the death penalty and affirmative action.
Democrats argue that Alito has built a conservative record on the 3rd Circuit and as a lawyer in the Reagan Justice Department that foretells a rightward approach on the high court.
In days of testimony, Alito has said he has no recollection of his membership in the Princeton group despite highlighting his involvement on a Reagan-era job application.
Specter said the panel's staff combed through four boxes of documents at the Library of Congress of William Rusher, a founder of CAP, and came across nothing that mentioned Alito.
"The files contain dozens of articles, including investigative exposes written at the height of the organization's prominence, but Sam Alito's name is nowhere to be found in any of them," Specter said.
Alito brushed aside attempts by Democratic Sen. Charles Schumer of New York to get his opinion of a proposal to deny citizenship to U.S.-born children of illegal immigrants.
"I need to apply the same standard that previous nominees have applied, and that's no hints and no previews. I can't opine on them here off the cuff," Alito said.
Yesterday, during a contentious Day 3 of hearings that at one point left Alito's wife in tears, the federal appeals court judge remained unflappable under persistent questioning by Democrats who attacked his credibility.
Alito's wife, Martha-Ann Bomgardner, grew emotional near the end of yesterday's session and briefly left the hearing room. She returned with Alito after a brief recess and was present again today.
"Many people will leave this hearing with a question as to whether or not you could be the deciding vote that would eliminate the legality of abortion," Sen. Dick Durbin of Illinois said during Democrats' grilling of the nominee about whether he now believes, as he did in 1985, that the Constitution cannot be construed to include a right to an abortion.
Alito refused to say.
"I don't think it's appropriate for me to speak about issues that could realistically come up" before the courts, he said, falling back on a line also used by now-Chief Justice John Roberts and other Supreme Court members during their confirmation hearings.
Unlike Roberts, who said at his lower court confirmation hearing in 2003 that he thought Roe v. Wade was "settled law," Alito said it was a precedent that should be respected. He would neither agree nor disagree that it was settled law when asked repeatedly by Durbin.
Senators got one last chance at questioning Alito today before reviewing the FBI's background report on him in a closed hearing, and listening to public witnesses like the American Bar Association on Alito's qualifications to become the nation's 110th justice.
Alito probably has the support of all 10 Republicans on the Senate Judiciary Committee, with at least half of them already declaring they will vote for his confirmation. There are eight Democrats.
"You're going to serve as an outstanding justice on the United States Supreme Court, and I will be supporting you here in the committee and on the floor," declared Sen. Sam Brownback, R-Kan., a potential 2008 presidential nominee who is courting conservative activists.
Alito's prospects for confirmation by the full Senate are also strong, although Democrats have not ruled out the possibility of a filibuster that could require supporters to post 60 votes in the 100-member chamber.