Beck falsely suggests Kagan endorsed government action against conservative speech

Beck distorts Kagan article to suggest she endorsed government intervention “if there's too much dangerous Glenn Beck or Rush Limbaugh.” In a segment warning that the Obama administration is somehow trying to restrict freedom of speech, Beck grossly distorted a 1996 University of Chicago Law Review article written by Kagan. On his May 13 Fox News show, Beck claimed:

Well, we've got to read a 1996 paper in which she wrote, quote, “If there is an 'overabundance' of an idea in the absence of direct governmental action -- which there might well be when compared with some ideal state of public debate -- then action disfavoring that idea might 'unskew,' rather than skew, public discourse.”

OK, so that -- so if that's too much -- if there's too much dangerous Glenn Beck or Rush Limbaugh, or too much talk radio, action by the government can unskew things and balance out the opinion. You see? That's your new Supreme Court nominee.

In fact, Kagan did not endorse regulating political opinions on talk radio or elsewhere. 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 Beck distorted, Kagan was not endorsing government attempts to regulate or “unskew” talk radio or any other medium to “balance out” Beck and Limbaugh. 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: Government “may not restrict” speech “because it disagrees with ... the ideas espoused by the speaker.” In defining what constitutes an impermissible government motive for regulating speech, Kagan specifically wrote in the article Beck distorted that government cannot regulate speech because it “disagrees with or disapproves of the ideas espoused by the speaker” and also cannot “restrict speech because the ideas espoused threaten officials' own self-interest.” From her article:

Consider the following snapshot of impermissible motives for speech restrictions. First, the government may not restrict expressive activities because it disagrees with or disapproves of the ideas espoused by the speaker; it may not act on the basis of a view of what is a true (or false) belief or a right (or wrong) opinion. Or, to say this in a slightly different way, the government cannot count as a harm, which it has a legitimate interest in preventing, that ideas it considers faulty or abhorrent enter the public dialogue and challenge the official understanding of acceptability or correctness. Second, though relatedly, the government may not restrict speech because the ideas espoused threaten officials' own self-interest -- more particularly, their tenure in office.*

First Amendment expert predicts that, like Justice Ginsburg, Kagan will likely be “generally pretty speech-protective.” Libertarian law professor Eugene Volokh, whose UCLA bio describes him as “a nationally recognized expert on the First Amendment,” examined Kagan's scholarship on the First Amendment, including the article that Beck distorted. Volokh 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:

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.

Beck falsely suggests Sunstein advocated “banning and taxing certain forms of speech”

Beck crops quote from Sunstein paper to falsely suggest he advocates banning or taxing certain speech. Beck selectively quoted from an article co-authored by Sunstein, the head of the Obama administration's Office of Information and Regulatory Affairs (OIRA), to falsely suggest that Sunstein was advocating banning and taxing certain forms of speech:

Here's Cass Sunstein on banning and taxing certain forms of speech. I know, I know -- it's just more academia, but I want you to watch. “What can the government do about conspiracy theories, and what should it do? It might ban conspiracy theories, somehow defined. Two, the government might impose some kind of tax, financial or otherwise, on those who disseminate such theories. Three, government might itself engage in counterspeech, marshalling arguments to discredit the conspiracy theories. Four, the government might actually formally hire credible private parties to engage in counterspeech. Five, the government might engage in informal communication with such parties, encouraging them to help.” Gee, that sounds like what she [Kagan] was saying.

Beck omitted sentence that makes clear Sunstein and co-author were not advocating banning or taxing speech. In the actual article, Sunstein and his co-author, Harvard law professor Adrian Vermeule, made clear they were not advocating banning and taxing speech. From the article (purchase required):

What can the government do about conspiracy theories, and what should it do? (1) Government might ban “conspiracy theories”, somehow defined. (2) Government might impose some kind of tax, financial or otherwise, on those who disseminate such theories. (3) Government might itself engage in counterspeech, marshaling arguments to discredit conspiracy theories. (4) Government might formally hire credible private parties to engage in counterspeech. (5) Government might engage in informal communication with such parties, encouraging them to help. Each instrument has a distinctive set of potential effects, or costs and benefits, and each will have a place under imaginable conditions. Our main policy claim here is that government should engage in cognitive infiltration of the groups that produce conspiracy theories, which involves a mix of (3), (4), and (5).

Conservatives have repeatedly praised Sunstein

Beck: “Kagan happens to be a big fan of Cass Sunstein ... who I maintain is the most dangerous man in America.” On his May 13 Fox News show, Beck said:

Oh, and in a completely unrelated story, Kagan happens to be a big fan of Cass Sunstein. She said, quote, “Cass Sunstein is the pre-eminent legal scholar of our time -- the most wide-ranging, the most prolific, the most cited, and the most influential.” Cass Sunstein, who I maintain is the most dangerous man in America. OK?

Instapundit's Reynolds: Sunstein is “an honest, decent and very smart guy who wants to help the country.” In a May 1, 2009, post, conservative blogger and University of Tennessee law professor Glenn Reynolds wrote of Sunstein's nomination to serve as the head of OIRA:

I've known Sunstein for a while -- in fact, my first introduction to Barack Obama was when he guest-blogged for me -- and while he and I disagree on plenty, I think he's an honest, decent and very smart guy who wants to help the country. Since I'm not going to get someone who agrees with me about everything from the Obama Administration (heck, I didn't get that from the Bush Administration) that ought to be enough, and I think that efforts to block his appointment are both unfair and not very smart. If they succeed, he'll be replaced by someone whose views are probably farther to the left (or at least more partisan and pliable), and who will almost certainly be less admirable and honest.

Volokh: “Sunstein is brilliant, thoughtful.” In a January 8, 2009, post headlined “Volokh Conspiracy Guest-Blogger Nominated to High Government Office,” Volokh wrote:

Well, OK, his guest-blogging isn't what he's famous for, but allow me to be parochial here, and point to Cass Sunstein's posts from last year. I agree with Todd Zywicki that Sunstein is an excellent choice. Sunstein is brilliant, thoughtful, and ideologically probably as good as libertarianish/conservativish people like me can hope for from the new administration.

WSJ editorial board: Sunstein “brings important qualifications”; Obama “has made a savvy choice.” In a January 10, 2009, editorial, the Wall Street Journal editorial board wrote:

We still don't know much about how Barack Obama plans to overhaul our financial regulatory system, but his reported appointment of Cass Sunstein to an important post is a promising sign.

Mr. Sunstein, a professor at Harvard Law School, is no conservative -- far from it. But his writings on regulation and the herd mentality deserve a voice in the incoming Administration. From his new post as Administrator of the Office of Information and Regulatory Affairs inside the White House, he would have an opportunity to put into practice some of the ideas he has written about as an academic.

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Odds are that you've never heard of the Office of Information and Regulatory Affairs, but it plays a central role within the executive branch in vetting regulatory proposals. Mr. Sunstein brings important qualifications to that role, and Mr. Obama has made a savvy choice in putting him there.

Former Bush Solicitor General Olson: “I respect him enormously.” In a September 11, 2009, post, FrumForum.com writer Tim Mak reported that former Bush administration Solicitor General Ted Olson said of Sunstein:

“Cass is one of the most brilliant, creative and productive lawyers I have ever known, and a true gentleman. I respect him enormously.”

Former AEI president DeMuth: "[I]t is a shame that his appointment as President Obama's regulatory chief has been delayed for so long." Mak also reported in his September 11, 2009, post:

One of the conservative experts on regulation who knows Sunstein best is past American Enterprise Institute President Christopher Demuth. In an email to NewMajority, DeMuth wrote in praise of the Sunstein selection: "[Sunstein] has publicly and privately supported the most high-profile conservative judicial nominees in recent years, and it is a shame that his appointment as President Obama's regulatory chief has been delayed for so long."

* Section added after the item was published.