Las Vegas Review-Journal attacks Kagan for brief defending ban on animal “crush videos”

Las Vegas Review-Journal distorts Kagan brief to attack her as extreme. From a July 2 Washington Times editorial headlined “The Kagan hearings” and subheadlined “Nominee would be a reliable hyperliberal”:

Ms. Kagan's statement in her signed brief for the animal cruelty case U.S. v. Stevens that, “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,” was and is, as Chief Justice John Roberts wrote in rejecting the argument for the high court, “startling and dangerous.”

The law Kagan's brief defended was written to outlaw animal “crush videos,” which depict women slowly crushing animals to death with their bare feet or high heels. As Chief Justice John Roberts stated in his majority opinion in United States v. Stevens, the law at issue in the case was written to outlaw “crush videos,” which “often depict women slowly crushing animals to death 'with their bare feet or while wearing high heeled shoes,' sometimes while 'talking to the animals in a kind of dominatrix patter' over '[t]he cries and squeals of the animals, obviously in great pain.'”

Chief Justice Roberts stated Kagan's brief was “derive[d]” from “descriptions in our precedents”

Roberts: Kagan's brief “correctly notes” how Court has described “historically unprotected categories of speech.” The Las Vegas Review-Journal editorial quotes Roberts' majority opinion calling the argument in the solicitor general's brief “startling and dangerous.” But the editorial fails to note that in the very next paragraph, Roberts acknowledges that the government's argument is based on language from Supreme Court precedent:

To be fair to the Government, its view did not emerge from a vacuum. As the Government correctly notes, this Court has often described historically unprotected categories of speech as being " 'of such slight social value as a step to truth that any benefit that may be derived fromthem is clearly outweighed by the social interest in orderand morality.' " R. A. V., supra, at 383 (quoting Chaplinsky, supra, at 572). In New York v. Ferber, 458 U. S. 747 (1982), we noted that within these categories of unprotected speech, “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,” because “the balance of competing interests is clearly struck,” id., at 763-764. The Government derives its proposed test from these descriptions in our precedents. See Brief for United States 12-13.

But such descriptions are just that--descriptive. They do not set forth a test that may be applied as a general matter to permit the Government to imprison any speaker so long as his speech is deemed valueless or unnecessary, or so long as an ad hoc calculus of costs and benefits tilts in a statute's favor.

Justice Alito sided with the government in the case

Justice Alito voted to uphold the constitutionality of the animal crush video ban. Completely undermining the Review-Journal's claim that Kagan's brief is evidence that she would be “a reliable hyperliberal,” the one justice who voted to uphold the statute at issue in the case was Alito. Alito wrote in his dissent:

The First Amendment protects freedom of speech, but it most certainly does not protect violent criminal conduct,even if engaged in for expressive purposes. Crush videos present a highly unusual free speech issue because they are so closely linked with violent criminal conduct. The videos record the commission of violent criminal acts, and it appears that these crimes are committed for the sole purpose of creating the videos. In addition, as noted above, Congress was presented with compelling evidence that the only way of preventing these crimes was to targetthe sale of the videos. Under these circumstances, I cannot believe that the First Amendment commands Congress to step aside and allow the underlying crimes to continue.

Kagan testified that the argument in the brief was the only one the government had to defend a poorly-written law

At her hearing, Kagan testified that she was making the best argument she could to defend the statute. Responding to questions by Sen. Orrin Hatch (R-UT) on her brief, Kagan stated that the animal “crush video” statute “was not drafted with the kind of precision that made it easy to defend from a First Amendment challenge.” And Kagan added that she put forward the “best argument” and “the only argument that we had” in order to defend the constitutionality of the statute. From Kagan's hearing (via Nexis):

KAGAN: Senator Hatch, I -- I think you are wrong to be concerned about it. Let me first talk about the United States v. Stevens brief. It's been a hard case. Congress had passed a statute, and it was a statute designed to deal with horrific acts of animal cruelty, including these things that I didn't know existed, these crush videos...

HATCH: That none -- that none of us would like, that's for sure.

KAGAN: But it was -- it was a statute that -- that was -- I hesitate to criticize Congress' work, but it was a statute that was not drafted with the kind of precision that made it easy to defend from a First Amendment challenge. And we thought that our best argument, really -- or, you know, the only argument that we had was to analogize the statute to other categories of expressive activity that the court had held were simply not protected by the First Amendment.

And most notably, the two categories that we used in that -- that brief were obscenity and child pornography. And those are categories where I think the court has done this kind of categorical balancing that I spoke of, that, you know, we spoke of in the -- in the brief, where the court has said, look, when it comes to obscenity or child pornography, child pornography is a -- is an especially apt example, because the -- the harm that Congress was trying to get at here, what Congress was trying to do, was to turn off the -- the spigot of distribution so that these materials would not be made in the first place.

And that was the theory that the court used to say that child pornography could be regulated under the First Amendment, that if we shut down the mechanisms of distributing and -- and -- this material, nobody would produce this material. And that's what Congress -- that that was clearly Congress is focus in -- in passing this animal cruelty statute.

And so what we tried to do was to analogize this statute to the child pornography laws that the court had upheld in Ferber and to say that the court should uphold the statute for the identical reason that it upheld the child pornography laws, that the court should realize the extraordinary harms of this -- of this speech and should realize the way in which this regulation is really aimed at stopping the initial production, the initial horrific acts that went into the production of the speech. And that was -- that was the government's view.

It was a view that was accepted by Justice Alito in the case. He was the only vote we got, but -- but he essentially accepted that theory. I think it was a very hard case, because it was -- again, I hesitate to criticize Congress' work, but it -- it -- another statue would've been easier to defend on First Amendment grounds, but we tried to do the best we could with it.

HATCH: You and I agree on that.

It is the job of the solicitor general to defend the constitutionality of federal statutes. During her Solicitor General confirmation hearing, Kagan noted it was the Solicitor General's job to provide a “vigorous defense of the statutes of this country against constitutional attack.” From Kagan's solicitor general confirmation hearing:

At the same time, the Solicitor General has critical, no less critical responsibilities to Congress--most notably, the vigorous defense of the statutes of this country against constitutional attack. Traditionally, outside of a very narrow band of cases involving the separation of powers, the Solicitor General has defended any Federal statute in support of which any reasonable argument can be made. And I pledge to continue this strong presumption that the Solicitor General's Office will defend each and every statute enacted by this body.

Solicitor general must put aside her personal positions in order to represent the interests of the United States. From Kagan's responses to written questions concerning her solicitor general nomination:

I understand that role as representing the interests of the United States, not my personal views. I indeed think that I would enjoy, as well as be deeply honored by, the Solicitor General's position if I am fortunate enough to be confirmed. The advocate's role is frequently to put aside any interests or positions other than those of her clients. And as I hope I expressed at my confirmation hearing, I would take enormous pride in representing and advancing the interests of the United States as a client - even if I would not myself have voted for every one of its statutes.