Hentoff falsely suggests Kagan supports prohibiting individuals from distributing pamphlets critical of gov't

Hentoff tries to link Kagan's views on corporate speech to Thomas Paine's Common Sense. In a May 19 WorldNetDailycolumn, Hentoff wrote that as solicitor general in the Citizens United case, Kagan argued that the government could penalize “corporations” for distributing political pamphlets, but then noted the “impact” of “pre-Revolution pamphlets as Tom Paine's 'Common Sense.'” Hentoff wrote:

Responding to Solicitor General Kagan's need of an education in civics, Chief Justice Roberts, in his concurring opinion in the Citizens United case, said: “The (Obama) government urges us in this case to uphold a direct prohibition on political speech. It asks us to embrace a theory of the First Amendment that would allow censorship not only of television and radio broadcasts, but of pamphlets.”

I know that a solicitor general is required to provide the Supreme Court with the positions of the administration that put her in office - but to this extent? Once on the Court, how solicitous will she be to the president who elevated her career and renown? I am assuming she knows that Tom Paine was a pamphleteer.

Kagan did not say government could restrict individuals' pamphlets, but rather corporate pamphlets that advocate for the election or defeat of a candidate. As Hentoff himself noted, 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.”

Common Sense never 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. It did not argue for or against a candidate for electoral office.

Hentoff falsely claims Kagan said government could “unskew” speech on talk radio

Hentoff falsely suggests Kagan wants to “unskew” the balance of ideologies in public discourse to hinder conservative speech. In the column, Hentoff purported to “translate” what Kagan was “actually saying” in a 1996 law review article about government regulation of “public discourse” by citing the Media Research Center: "[W]hat Kagan was actually saying: 'So if talk radio suffers from an 'overabundance' of conservative voices, government action to 'unskew' this particular public discourse is just fine by her.'" From the column:

Here is Kagan on government involvement in speech in her 1996 article in the University of Chicago Law Review: “Private Speech, Public Purpose: The Role of Governmental Motive in First American Doctrine.” From the article, as quoted on May 12 of this year by Seton Motley, director of Communications of the conservative Media Research Center:

“Kagan wrote: If there is an 'overabundance' of an idea in public discourse 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 (distort) public discourse.” What on earth does that mean?

Translated by Motley, what Kagan was actually saying: “So if talk radio suffers from an 'overabundance' of conservative voices, government action to 'unskew' this particular public discourse is just fine by her.”

Is this being fair to Kagan's views on what some of her critics have called her support of “government 'redistribution of speech'”? A member of the Senate Judiciary Committee should ask about her revisions of the First Amendment during the confirmation hearing. It probably won't be a Democratic senator.

In fact, Kagan 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 portion of the article that Hentoff 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.

[...]

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 explicitly said First Amendment doesn't allow government to ban speech it doesn't like. In defining what constitutes an impermissible government motive for regulating speech, Kagan specifically said 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.

Kagan argued that courts are particularly suspicious about laws that are justified on diversity or redistributive grounds. In the article, Kagan notes that in Buckley v. Valeo, the Supreme Court stated: "[T]he 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.

Hentoff falsely suggests Kagan's views on banning categories of speech are controversial

Hentoff falsely suggests Kagan's views on banning categories of speech was “revis[ing] the First Amendment.” From the column:

A member of the Senate Judiciary Committee should ask about her revisions of the First Amendment during the confirmation hearing. It probably won't be a Democratic senator.

For an ominous example of those revisions, Kagan, speaking before the Court defending a 1999 federal ban on depictions of animal cruelty, said: “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” (Jacob Sullum, Reason.com, May 12). What a boon to all kinds of censors!

In fact, the Supreme Court has long held that some categories of speech -- such as child pornography -- can be restricted or banned because their potential for harm outweighs their societal value. In the brief the Hentoff cited, Kagan noted 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'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.

[...]

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.