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Kagan's Scholarly Articles Outline First Amendment Stance

5/10/2010 01:14:17 PM

While she has no judicial opinions to vet, Supreme Court nominee and Solicitor General Elena Kagan’s views on the First Amendment have given some folks hope that she has at least a healthy skepticism of government attempts to equalize speech by restricting some voices and enhancing others, but her office’s defenses in a couple of recent cases before the High Court gives others pause.

In the latter category, she argued before the High Court in the Citizen’s United case, in which the government defended what the media industry and many First Amendment attorneys argued was a ban on political speech (the Supreme Court agreed and threw out the ban). Her office also defended an effort to ban depections of animal cruelty that also was rejected by the court.

In the latter case, the government had argued that the animal cruelty depictions should join the list of categorically unprotected speech that now inludes obscenity, defamation, fraud, incitement and speech integral to crimes, and to do so via a societal balancing act. The court said that suggestion was “startling and dangerous.”

Kagan, who was nominated Monday (May 10) for the seat being vacated by John Paul Stevens, is the former dean of Harvard Law School and a University of Chicago Law School faculty member, but has never been a sitting judge.
While her paper trail is thin, it includes a number of scholarly articles on First Amendment issues she wrote while a professor in the 1990’s including Regulation of Hate Speech and Pornography After R.A.V. and Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine.

Back when her name was being floated for the Supreme Court seat vacated by Justice David Souter in 2009, the First Amendment Center wrote that “proposed regulations on hate speech and pornography failed to adhere to the fundamental First Amendment principle of viewpoint neutrality —that the government cannot favor certain private speakers or viewpoints over others,” the center noted, calling it part of an “impressive pro-first Amendment record of scholarship.”

But the Center for Competitive Politics, vetting her piece on Private Speech, Public Purpose back in 2009, calls her “moderately pro speech.” It points out that while she suggests that First Amendment cases are all about trying to ferret out speech restrictions that are “tainted with ideological, and especially with self- interested, motivations,” she also says government attempts to level speech by favoring one speaker and disfavoring another are not in and of themselves in conflict with the First Amendment.

One veteran communications attorney called her defense in Citizen’s United and her office’s push for expanding the rolls of unprotected speech “troubling,” but pointed out that her academic writings did not necessarily signal how she would rule as a judge, and that her role as solicitor general was essentially as a lawyer advocating for a client, in this case the government, rather than necessarly for her own views.

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