Early this month President Obama selected Solicitor General Elena Kagan as his replacement for retiring Justice John Paul Stevens on the United States Supreme Court.
Some analysts lament that Kagan’s paper trail is thin.
Overall this may be true, but in one area, her record is clear – on issues involving the First Amendment, where, her views are, to say the least, troublesome.
First Amendment litigation activity, covering as it does issues ranging from religious liberty, free speech, lobbying to freedom of the press, continues to be significant. Many Americans may not realize how frequently issues involving the First Amendment come before the high court. There certainly are no signs that this is a waning trend. In the last session alone no fewer than 10 cases involving First Amendment claims made it to the Court’s docket.
Kagan will have a critical role to play in these future cases, making her opinions such as we know them important. An examination of several of the law review articles she has written and the First Amendment cases in which she has involved herself as solicitor general reveals a consistent and inexplicable hostility toward free speech.
It is axiomatic that the First Amendment provides an almost absolute bar on restrictions against political speech; yet, whether in the name of ethics, national security or preventing prurience, Kagan presses for substantially lower treatment of this type of speech.
Moreover, she doesn’t appear to give much credence to other forms of expression either.
As early as 1992 Kagan describes a theory of the First Amendment involving “viewpoint based government regulation” -- the classic type of speech the First Amendment guards against -- which might be allowed when racist or sexist speech is involved; especially she says if a more “advantageous change in the Court’s membership” were to occur. Conversely, under her theory if the speakers subject to her lower threshold for speech regulation manage to get a subsidy from the federal purse, then she claims the government should have less ability to regulate their speech.
Here’s the takeaway. Under her view of “free speech,” Hillsdale College, a small liberal arts school in Michigan and crisis pregnancy centers throughout the nation that receive no funds might find themselves subjected to speech restrictions due to a perceived hostility on their part to women and minorities. Nevertheless, Planned Parenthood and presumably Harvard would be allowed to operate free from any restrictions on pro-abortion or gay rights advocacy while because they receive public funds.
Next, there is her 1995 University of California, Davis law review article on speech codes in which she asserts one way to defend a Stanford University speech code would be to consider it “a ban on the subcategory of fighting words that must pose the dangers associated with fighting words generally.” This has strong anti-First Amendment implications. Logically, Congress could pass an anti-discrimination statute that revokes the tax-exempt status of churches that advocate traditional marriage since many Americans find this position to be offensive.
Finally there is a 1996 Chicago Law review article on the First Amendment in which Kagan theorizes that the Courts -- instead of focusing on the First Amendment’s goal of ensuring that individual expression and the marketplace of ideas is encouraged -- should focus on the government’s motives in adopting regulations that impact speech.
If their goals were neutral then the impact on speech wouldn’t necessarily be protected. Thus it would seem that as long as the government doesn’t favor any given position on a topic, logically it could ban talk radio completely on public airwaves or ban all political campaigning using the internet.
Kagan’s record as Solicitor General should be equally alarming to free speech advocates, given that she recently argued in favor of restrictions on what many would see as commonplace and commonsense liberties.
In Citizens United vs. Stevens, the Federal Election Commission claimed for itself the right to ban the distribution and exhibition of an unflattering documentary about Hillary Clinton released during her failed presidential bid. Citizens United, a non-profit, wanted to air ads for the anti-Clinton movie and then distribute the movie through video-on-demand services on local cable systems both during and after the 2008 Democratic primary campaign. Calling the video a 96-minute long campaign ad, the FEC said it should be regulated accordingly.
The case should have been dropped almost immediately. Instead, Kagan’s office argued in the first of two hearings before the Supreme Court that not only could the FEC regulate the Hillary movie, it could also ban the publication of books as well if they were deemed to be campaign ads.
During a second hearing before the Supreme Court in which, Kagan herself appeared she asserted that the FEC could lawfully ban or regulate pamphlets. While seemingly not as comprehensive a claim as her deputy had made earlier, on its face, her reasoning implies the FEC could regulate Common Sense pamphleteer Thomas Paine or Federalist Papers essayists Madison and Hamilton. The FEC power’s claims were overruled in a 5-4 decision. Notably, however not one Justice embraced Kagan’s views regarding prepublication censorship.
In the second case, the Justice Department targeted a documentary filmmaker for prosecution because of a film he’d made to discourage pit bull fights. Using a law passed during the Clinton Administration to prevent the sale and distribution of so-called “crush” videos, 69-year-old dog-lover Robert Stevens was convicted and sentenced to 3 years in prison – a sentence longer than that received by NFL player Michael Vick who bankrolled pit bull fights.
Roberts argued that the First Amendment protected his right to make films to combat dog fighting and that the “crush” video law which banned videos that appeal to a fetish involving women crushing to death small animals with their bare feet or high-heeled shoes. Instead of realizing that they had over-reached in prosecuting Stevens, Justice went forward with the case with Kagan arguing, “The law was necessary to combat the commercial incentives someone might have in trying to profit off of activities that are illegal in all 50 states.” Ultimately, the Court ruled 8-1 that the law was an undue infringement on free expression and was unconstitutional.
Taken alone these two cases might be simply disturbing. However when combined with her writings in law review articles, her attitude toward free speech appears much more alarming.
As demonstrated by her record, Kagan clearly believes the scope of the First Amendment should be narrower than it is today. This view puts her outside the mainstream of current legal thinking. Her writings on the topic, combined with her record of advocacy as Solicitor General, produce a troubling pattern: She consistently devalues political speech and freedom of expression in favor of government control.
As a committed progressive, her attitude on political speech and individual expression is certainly not unexpected. Nevertheless, when being considered for one of nine positions which will ultimately define the limitations and contours of the First Amendment, her views are quite troubling.
Horace Cooper is the director of the Institute for Liberty’s Center for Law and Regulation.
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