WASHINGTON -- Even if Chief Justice William H. Rehnquist returns to the bench next week, it is expected that he will step down at the end of the Supreme Court's 2004-05 term, giving President Bush his first high court nomination -- or maybe two nominations if Bush decides to stick a finger in liberals' eyes and attempt to elevate Clarence Thomas or Antonin Scalia to the chief's chair.

		Michael McGough is an editor at large in the PG's National Bureau (mmcgough@ nationalpress.com).

Then we will see the ritualized retracing by the press and interest groups of the paper trail left by Bush's nominee or nominees, with their decisions (assuming they are sitting judges) pigeonholed into "liberal" and "conservative" categories. In the "liberal" column, especially in news reports, will be the category "free speech" or "First Amendment." After all, isn't the ACLU a "liberal" organization? But this is an oversimplification. On several fronts, First Amendment absolutists -- including some in the "liberal media" -- are out of sync with contemporary political liberalism.

Let's start with the technical but (thanks to President Bush) hot topic of tort reform. I could paper the walls of my office with editorials, including from the Post-Gazette, about the evils of punitive damages -- which can dramatically exceed actual damages -- in libel suits against newspapers. Such damages, journalists say, undermine the uninhibited coverage of public affairs that is the essence of the First Amendment's Free Press Clause. But many editorial pages oppose punitive damages even in other contexts, like products liability.

Still, to many liberals, the tort system -- or, as they prefer to call it, the "civil justice system" -- is an admirable and egalitarian institution, allowing the little guy to sock it to polluters, ham-handed surgeons and other moneyed malefactors (or at least to their insurance companies).

To some on the left, the news media's skepticism about the tort system isn't much of a paradox: After all, as A.J. Liebling memorably put it, "freedom of the press belongs to the man who owns one," and for a lot of self-described progressives the "corporate media" are corporations first and media second.

But tort reform isn't the only area in which political liberals have an uneasy alliance with a robust reading of the First Amendment's speech and press clauses. Consider the current controversy over the arrest of evangelist Michael Marcavage, on "ethnic intimidation" charges among others, for haranguing participants at a Gay Pride event in Philadelphia last year.

According to The Philadelphia Inquirer, Marcavage has an in-your-face MO: warning gays that they face eternal damnation if they don't repent of the "abomination" of homosexual activity.

Under a 1942 U.S. Supreme Court decision involving a Jehovah's Witness arrested for calling a police officer a "God damned racketeer," one could argue that Marcavage has no First Amendment right to inflict "fighting words" on gays. But the 1942 decision has been effectively overruled by subsequent decisions, to praise from liberals. As a result, even obnoxious protesters in a public space are supposed to be able to rant to their hearts' desire, though the Supreme Court in 1994 upheld a law requiring protesters to stand outside the 36-foot buffer zone around abortion clinics.

Marcavage has become a cause celebre for right-wing organizations. Even some liberals question whether he was an appropriate target of Pennsylvania's ethnic intimidation law, which creates a special category for crimes motivated by hostility toward a victim's sexual orientation, race, gender or disability. (One of the questions in the Marcavage case is whether there was an underlying crime in the first place.)

Whatever one thinks of the Marcavage case -- or of "hate crime" laws, which even some gay activists oppose -- the case demonstrates the tension between free-speech absolutism and the liberal political agenda of protecting minorities.

Which brings us back to the Supreme Court. In some ways, the Marcavage controversy recalls a 2001 ruling by the 3rd U.S. Circuit Court of Appeals that is sure to be dusted off by journalists if its author, Circuit Judge Samuel A. Alito Jr., is nominated to the high court by Bush. Alito -- dubbed "Scalito" by detractors because of his supposed affinity with Justice Scalia -- is on most short lists of potential Bush appointees.

In the 2001 case, the 3rd Circuit struck down on First Amendment grounds the anti-harassment policy adopted by the State College Area School District in Pennsylvania. The policy, which prohibited harassment on the basis of "one's actual or perceived race, religion, color, national origin, gender, sexual orientation, disability or other personal characteristics," had been challenged by two children who said they feared it would get them into trouble if they gave voice to their religious belief that "homosexuality is a sin."

The 3rd Circuit overturned the policy because, in Judge Alito's words, "there is no categorical 'harassment exception' to the First Amendment's Free Speech Clause." Alito's opinion also cited a 1969 decision in which the Supreme Court upheld the right of public-school students in Iowa to wear black armbands to protest the Vietnam War. In that ruling, Alito noted, the justices had said that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."

Balancing the First Amendment rights of students with the right of their gay classmates to be free of hurtful harassment is a complicated challenge (unless one believes either that there are no gay or lesbian adolescents, or that, if there are, they can be scared straight.) But, as liberals often say in other contexts, freedom of speech comes at a price.

Whether or not Judge Alito and his colleagues struck the right balance in the State College schools case, the ruling illustrates the tension between two values usually lumped together as "liberal" -- a generous reading of the First Amendment and solicitude for victims of discrimination. If Alito or someone with similar views is nominated to the Supreme Court, it will be interesting to see how the "liberal press" deals with that perplexing phenomenon.