Nothing Wash. Times says about Kagan's views on the First Amendment is true

››› ››› ADAM SHAH

A Washington Times editorial advanced numerous falsehoods in order to paint Elena Kagan as anti-free speech, including the false claim that Kagan has argued that the government could ban pamphlets such as Thomas Paine's Common Sense.

Kagan has not argued that the government can ban pamphlets like Common Sense

Wash. Times falsely claims that Kagan's First Amendment work "suggests she might restrict Thomas Paine, circa 1776, from distributing his famous pamphlet." From a May 18 Washington Times editorial:

Would Supreme Court nominee Elena Kagan outlaw "Common Sense"? Ms. Kagan's work on First Amendment free-speech issues suggests she might restrict Thomas Paine, circa 1776, from distributing his famous pamphlet. Solicitor General Kagan likewise might outlaw "The Federalist Papers" if Founding Fathers James Madison and Alexander Hamilton refused to say who paid to publish their essays. These views on the First Amendment are troubling enough to raise serious doubts as to whether the Senate should confirm her for the high court.

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In her Supreme Court oral arguments in the corporate-speech case of Citizens United v. FEC, Ms. Kagan hedged on whether government could ban corporate-funded political books. But she did say that "a pamphlet would be different. A pamphlet is pretty classic electioneering," and thus subject to campaign restrictions. So sorry, Mr. Madison.

Kagan actually argued that the government could restrict corporate pamphlets that advocated for the election or defeat of a candidate. The statute at issue in Citizens United v. FEC banned corporations and labor unions from making "a contribution or expenditure in connection with any election at which presidential and vice presidential electors or a Senator or Representative in, or a Delegate or Resident Commissioner to, Congress are to be voted for, or in connection with any primary election or political convention or caucus held to select candidates for any of the foregoing offices." It did not bar individuals from making any contributions or expenditures and, due to regulations passed by the Federal Election Commission in response to a prior Supreme Court ruling that Congress could not constitutionally limit expenditures that did not expressly advocate for the election or defeat of a statute, did not ban corporations from making contributions or expenditures unless, in the words of the regulation, "the communication is susceptible of no reasonable interpretation other than as an appeal to vote for or against a clearly identified Federal candidate."

Neither Common Sense nor the Federalist Papers argued for the election or defeat of a candidate. Common Sense argues in favor of the American Revolution, against the British monarchy, and in favor a new system of government for the newly-independent colonies. The Federalist Papers argue for the ratification of the U.S. Constitution. Neither argues for or against a candidate for electoral office.

As Wash. Times itself acknowledges, "it isn't always fair to ascribe personally to solicitors general the positions they argue."Pamela Harris, the head of Georgetown University's Supreme Court Institute, has said, "I don't think you can read almost anything" into the personal views of a solicitor general based on her representation of the United States. Lincoln Caplan, an expert on solicitors general, recently told The Washington Post, "It's a mistake to assume that every argument an SG makes on behalf of the government reflects her personal legal philosophy." Indeed, the Times editorial itself acknowledges that "it isn't always fair to ascribe personally to solicitors general the positions they argue in court on the government's behalf." However, the Times adds: "it is fair if the arguments they use in court echo ones they made in private practice," and then proceeds to distort Kagan's scholarly articles on the First Amendment.

The Supreme Court agrees with Kagan's statement that the government can restrict some categories of speech

Wash. Times suggests that Kagan's statement that categories of speech can be restricted is controversial. From the Times editorial:

In the government's brief in a case called United States v. Stevens, Ms. Kagan elaborated: "Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs." Whoa, Nellie, who -- pray tell -- does the balancing? Judges? Bureaucrats? The Almighty President?

In fact, the Supreme Court has long held that some categories of speech -- such as child pornography -- can be restricted orbanned because their potential for harm outweighs their societal value. In the brief the Times cites, Kagan notes that the Supreme Court has banned entire categories of speech -- including fighting words and child pornography. Indeed, in a case approving a statute banning child pornography, the Supreme Court majority stated: "[I]t is not rare that a content-based classification of speech has been accepted because it may be appropriately generalized that within the confines of the given classification, the evil to be restricted so overwhelmingly outweighs the expressive interests, if any, at stake, that no process of case-by-case adjudication is required." From Kagan's brief:

To determine whether a certain class of speech enjoys First Amendment protection, this Court has performed a categorical balancing analysis, comparing the expressive value of the speech with its societal costs. Where the First Amendment value of the speech is "clearly outweighed" by its societal costs, the speech may be prohibited based on its content. Chaplinsky, 315 U.S. at 572. Case-by-case adjudication is not required, because "it may be appropriately generalized that * * * the evil to be restricted so overwhelmingly outweighs the expressive interests, if any, at stake" that the entire category may be prohibited. Ferber, 458 U.S. at 763-764.

The Court first enunciated that approach in Chaplinsky, where it explained that "fighting words" may be regulated consistent with the First Amendment because they have no or minimal expressive value and "by their very utterance inflict injury." 315 U.S. at 572. Subsequently, in Roth, the Court relied on the Chaplinsky balancing test in determining that obscene speech does not enjoy First Amendment protection. The Court there explained that material which "deals with sex in a manner appealing to [the] prurient interest" utilizes a mode of expression that is "utterly without redeeming social importance." 354 U.S. at 484, 487; see Miller, 413 U.S. at 20-21, 34-35 (also relying on Chaplinsky). In Ferber, the Court conducted a similar analysis, explaining that child pornography lacks First Amendment protection because the "balance" of "the expressive interests, if any, at stake" and "the evil to be restricted" "is clearly struck" in favor of regulation. 458 U.S. at 763-764.

Kagan was not arguing that the First Amendment allows government to "redistribute" speech

Wash. Times falsely suggests that Kagan argued that government could "redistribute" or "unskew" speech. From the Times editorial:

While it isn't always fair to ascribe personally to solicitors general the positions they argue in court on the government's behalf, it is fair if the arguments they use in court echo ones they made in private practice. Ms. Kagan's record suggests her personal views match her solicitor arguments. In a 1996 University of Chicago Law Review article, she argued that speech restrictions are allowable if the government's "motive" is acceptably nonideological. In dense academic prose, Ms. Kagan openly mused about the merits of "redistribution of expression," of "neutral regulations of speech ... that are justified in terms of achieving diversity" and of "disfavoring [an] idea [to] 'unskew,' rather than skew, public discourse."

In fact, Kagan argued that courts are particularly suspicious about laws that are justified on diversity or redistributive grounds.In the article from which the Times quotes, Kagan notes that in Buckley v. Valeo, the Supreme Court stated: "the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment." She later adds that "Buckley's antiredistribution principle has continuing importance: no Justice on the current Court would dispute the claim -- even if some Justices would dispute applications of it -- that the government may not restrict the speech of some to enhance the speech of others." Kagan later argues, however, that despite the language in Buckley, the case is best understood as establishing "an evidentiary tool designed to aid in the search for improper motive." And Kagan says that there is an "increased probability" that "laws directed at equalizing the realm of public expression" or achieve "diversity" have such an improper motive. From Kagan's article:

The question remains, however, why the Court should treat as especially suspicious content-neutral regulations of speech -- such as the regulations in Buckley -- that are justified in terms of achieving diversity. If the Buckley principle serves as a means for flushing out illicit motive, then the answer must relate to some special characteristic(s) of these regulations that affect the motive inquiry. And in fact, the nature of these regulations, as compared with other content-neutral regulations, creates two problems (similar to those posed by standardless licensing schemes): first, that governmental officials (here, legislators) more often will take account of improper factors, and second, that courts will have greater difficulty detecting the presence of such tainted deliberations.

The increased probability of taint arises, most fundamentally, from the very design of laws directed at equalizing the realm of public expression. Unlike most content-neutral regulations, these laws not only have, but are supposed to have, content-based effects; their raison d'etre is to alter the mix of ideas-or, at least, of speakers, who tend to be associated with ideas-in the speech market. Given this function, these laws will have not the diverse, diffuse, and crosscutting content-based effects usually associated with content-neutral laws, but a set of targeted and coherent effects on ideas and speakers. This set of focused effects renders a law directed at equalization nearly as likely as a facially content-based law, and much more likely than most facially content-neutral laws, to stem from improper motive. In considering such a law, a legislator's own views of the ideas (or speakers) that the equalization effort means to suppress or promote may well intrude, consciously or not, on her decision-making process. The law thus raises grounds for suspicion.

Kagan also did not argue that government regulations are justified if they seek to "unskew" speech. In her article, Kagan was arguing that the Supreme Court has usually based its decisions about government regulation of speech on the government's motives rather than on the consequences of the regulation. In the specific portion of the article that the Times distorted, Kagan was not endorsing government attempts to "redistribut[e]" or "unskew" public discourse in order to amplify or diminish certain opinions. Rather, Kagan was discussing the 1992 case R.A.V. v. City of St. Paul, which invalidated an anti-hate speech law enacted in St. Paul, Minnesota. Kagan argued that the R.A.V. decision was based on St. Paul's "illegitimate, censorial motives" in passing the law -- not on the ways in which the law might have impermissibly "skewed" public debate. Kagan wrote:

Finally, the notion of a skewing effect, as an explanation of R.A.V. or any other case, rests on a set of problematic foundations. The argument assumes that "distortion" of the realm of ideas arises from -- and only from -- direct governmental restrictions on the content of speech. But distortion of public discourse might arise also (or instead) from the many rules of property and other law that, without focusing or intending to focus on any particular speech, determine who has access to expressive opportunities. If there is an "overabundance" of an idea in the absence of direct governmental action -- which there well might be when compared with some ideal state of public debate -- then action disfavoring that idea might "unskew," rather than skew, public discourse. Suppose, for example, that racists control a disproportionate share of the available means of communication; then, a law like St. Paul's might provide a corrective.

A court well might -- as the R.A.V. Court did -- refuse the government the power to provide this corrective, but to do so, the court must discard a rationale focused purely on effects and adopt a rationale focused on motive.

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The worry in a case like R.A.V. is not with skewing effects per se; the fear of skewing effects depends upon, and becomes meaningless without, the fear that impermissible considerations -- call them for now "censorial" or "ideological" considerations -- intruded on the decision to restrict expression.

The R.A.V. Court made this concern about illegitimate, censorial motives unusually evident in its opinion, all but proclaiming that sources, not consequences, forced the decision. [Kagan, "Private Speech, Public Purpose," 1996, Pages 420-421]

Kagan did not say that free speech law should be concerned exclusively with governmental motivation, rather she was providing a "primarily ... descriptive theory" of First Amendment doctrine. From Kagan's article:

I am not about to craft (yet another) all-encompassing -- which almost necessarily means reductionist -- theory of the First Amendment. First, what follows is primarily a descriptive theory; although I discuss its normative underpinnings, I make no claim that a sensible system of free speech should be concerned exclusively with governmental motivation.

Kagan: A First Amendment doctrine based on searching for improper motive is not "self-evidently correct." Kagan concluded her article by saying:

The presence of this underlying principle, explaining and rationalizing First Amendment doctrine, does not make the doctrine self-evidently correct. We may believe that the doctrine cares too much about motive or that it cares too little about other things. But the principle does make the doctrine internally consistent and coherent. If the current doctrinal formulations are wrong, they are largely wrong as a whole and for the same reasons. And those reasons would relate-as most of the law relates -- to the decision to treat the question of governmental motive as the preeminent inquiry of the First Amendment.

Kagan did not say government can regulate speech because it creates wealth

Wash. Times falsely suggested that Kagan said government creates wealth and therefore can regulate speech. From the Times editorial.

Ms. Kagan's First Amendment work repeatedly promotes the idea that speech rights are granted by government rather than inherent in the God-given nature of man.

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These government-favoring ideas on speech mirror a government-centric view of ... well, of everything. In a footnote in that 1996 essay, Ms. Kagan wrote that restrictions on corporate speech were based "on the ground that corporate wealth derives from privileges bestowed on corporations by the government. But this argument fails, because individual wealth also derives from government action. ... The question in every case is whether the government may use direct regulation of speech to redress prior imbalances."

The simple answer to that question is no. Individuals, not governments, create wealth - and individuals acting in a free market of ideas can use speech to try to redress any perceived imbalances. Ms. Kagan's apparent view to the contrary is disturbing and should be disqualifying.

Kagan was not saying that, because government creates wealth, it can regulate speech. In the comments the Times quotes, Kagan was actually arguing against one potential rationale for limiting corporate spending on campaigns, the argument that government created corporations and therefore can completely regulate their speech. Kagan stated:

The Court tried to distinguish Austin from Buckley, principally on the ground that corporate wealth derives from privileges bestowed on corporations by the government. But this argument fails, because individual wealth also derives from governmental action. What the Court recognized in Austin is only what is true in every case: direct regulation of speech occurs against a backdrop of law that, while not referring to speech, goes far toward structuring the sphere of public expression. The question in every case is whether the government may use direct regulation of speech to redress prior imbalances. [citation omitted]

Clarence Thomas said "I don't see a role for the use of natural law in constitutional adjudication." The Washington Timesattacked Kagan for promoting "the idea that speech rights are granted by government rather than inherent in the God-given nature of man." But even Supreme Court Justice Clarence Thomas has rejected the idea of using "natural law in constitutional adjudication." From Thomas' hearing:

As I indicated, I believe, or attempted to allude to in my confirmation to the Court of Appeals, I don't see a role for the use of natural law in constitutional adjudication. My interest in exploring natural law and natural rights was purely in the context of political theory. I was interested in that. There were debates that I had with individuals, and I pursued that on a part-time basis. I was an agency chairman.

Kagan's First Amendment views are mainstream and "generally pretty speech-protective"

First Amendment scholar Volokh predicts that -- like Justice Ginsburg -- Kagan will likely be "generally pretty speech-protective." Conservative media have repeatedly distorted Kagan's statements to suggest that she is anti-free speech. However,libertarian law professor and First Amendment expert Eugene Volokh examined Kagan's scholarship on the First Amendment and concluded that "the likeliest bet" is that Kagan would be "generally speech-protective, but probably with some exceptions in those areas where the liberal Justices on the Court have taken a more speech-restrictive view." Volokh wrote:

On then to my own evaluation of the First Amendment articles: I think they're excellent. I disagree with them in significant ways (this article, for instance, reaches results that differ quite a bit from those suggested by Kagan's Private Speech, Public Purpose article, see, e.g., PDF pp. 8-9). But I like them a lot.

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My guess is that the likeliest bet would be to say that a Justice Kagan would be roughly where Justice Ginsburg is -- generally pretty speech-protective, but probably with some exceptions in those areas where the liberal Justices on the Court have taken a more speech-restrictive view, chiefly expensive speech related to campaigns and religious speech in generally available government subsidies. Not perfect from my perspective, but not bad, and no worse than Justice Stevens, with whom Justice Ginsburg largely agreed on such matters.

Former Chicago Law School Dean Stone: Kagan approached First Amendment issues "without even a hint of predisposition."Geoffrey R. Stone, a law professor at the University of Chicago who was dean when Kagan was hired there, wrote in a May 10 article:

In her formative years as a scholar, Kagan wrote a series of illuminating articles about freedom of speech. They were illuminating not only because they shed interesting light on the First Amendment, but also because they reveal a lot about Kagan. In an area rife with ideology, her articles addressed complex and weighty legal questions without even a hint of predisposition.

In one early essay, she addressed the provocative issue of hate speech. After examining the question in a rigorous, lawyerlike manner, she came out in full support of a highly controversial 5-4 decision authored by none other than conservative Justice Antonin Scalia, which held that the government cannot constitutionally ban hate speech. Kagan reached this result even though it was clearly contrary to the liberal orthodoxy at the time.

Even Fox News' Megyn Kelly says Kagan "seems pretty middle of the road" on "free speech matters." From the May 11 edition of The O'Reilly Factor (retrieved from Nexis):

KELLY: Well, I have to say on free speech, Elena Kagan, so far this is something she's written a lot about, seems pretty middle of the road. I don't expect her to be a far left liberal on free speech matters.

NY Times reports there are indications Kagan's "views on government regulation of speech were closer to the Supreme Court's more conservative justices, like Antonin Scalia." The New York Times reported in a May 14 article:

In her early years as a law professor, Elena Kagan wrote almost exclusively on the First Amendment. There are indications in those writings that her views on government regulation of speech were closer to the Supreme Court's more conservative justices, like Antonin Scalia, than to Justice John Paul Stevens, whom she hopes to replace.

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