WND's Klein hits Kagan for agreeing with Scalia on flag-burning

››› ››› TERRY KREPEL

Aaron Klein falsely suggested Elena Kagan supports government "disappear[ing]" some speech, which he contrasted with her statement that government bans on flag-burning are unconstitutional. But Kagan has said that government "may not restrict" speech "because it disagrees with" it, and her position on flag-burning is consistent with a Supreme Court ruling joined by Antonin Scalia.

Klein: Kagan "has advocated silencing other kinds of speech," but said gov't may not ban flag-burning

From Klein's May 17 WorldNetDaily article:

Elena Kagan, President Obama's pick for the U.S. Supreme Court, argued the government may not ban flag-burning protests.

However, Kagan has advocated silencing other kinds of speech, stating, for example, speech that promotes "racial or gender inequality" could be "disappeared."

Writing in the Spring 1996 edition of the University of Chicago Law Review, Kagan argued that while the government may enact a general ban on fires in public places, it cannot enact legislation to ban flag-burning protests specifically.

She wrote: "The government may stop protesters from burning flags by enacting a general restriction -- say, a ban on lighting fires in public places. But the government may not specifically proscribe the burning of flags for purposes of protest."

Kagan also agreed with a 1989 court decision striking down a state law that made it a crime to burn the American flag.

Kagan did not advocate government "disappear[ing]" certain types of speech

Kagan said the "uncoerced disappearance" of certain speech would be "cause for great elation" -- which Klein quotes accurately later in his article. Klein selectively quotes Kagan by claiming that she wrote "speech that promotes 'racial or gender inequality' could be 'disappeared.' " Klein accurately quoted Kagan's full statement from her 1993 law review article on the issue later in his article, revealing that, contrary to Klein's earlier suggestion that Kagan wants certain speech forcibly "disappeared" by the government, Kagan was actually writing specifically about "uncoerced disappearance":

I take it as a given that we live in a society marred by racial and gender inequality, that certain forms of speech perpetuate and promote this inequality, and that the uncoerced disappearance of such speech would be cause for great elation.

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 a separate article also cited by Klein 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's view on flag-burning consistent with that of Supreme Court, including Scalia

Scalia joined with majority overturning anti-flag-burning laws. In the 1989 case Texas v. Johnson, the Supreme Court ruled 5-4, with conservative justice Antonin Scalia joining with the majority, that flag-burning was a protected form of speech under the First Amendment. Kagan's statement, as quoted by Klein, that "the government may not specifically proscribe the burning of flags for purposes of protest" is entirely consistent with the Supreme Court's ruling.

Contrary to WND headline, Kagan's statement not evidence she approves of flag-burning

WND headline baselessly suggests Kagan is in favor of flag-burning. WorldNetDaily headlined Klein's article "Kagan: Flag-burning OK; But argued for ban of speech 'offensive' to society, government," baselessly suggesting that Kagen personally approves of flag-burning.

Scalia statements on flag-burning make clear that one can disapprove of flag-burning but still find it constitutionally protected. Scalia has reportedly said that he "did not like having to vote that the U.S. Constitution's right of free speech allowed people to express their contempt for the United States by burning a flag" but "believed that the Constitution dictated that view." From Joan Biskupic's book American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia (Farrar, Straus and Giroux, 2009):

Now, in his fifteenth year on the Court, Scalia was continuing in his role as the loud dissenter. In early September 2000, when he spoke at the University of Idaho, he said that his job was often "to tell the majority to take a walk." He told his audience that his originalist views sometimes conflicted with his personal convictions. He said, for example, that he did not like having to vote that the U.S. Constitution's right of free speech allowed people to express their contempt for the United States by burning a flag. He believed that the Constitution dictated that view. "Don't get me wrong," he added, repeating one of his favorite lines. "I don't like scruffy bearded, sandal-wearing people who go around burning the United States flag." This was Scalia: out there, unafraid to say what he believed, affirmatively not politically correct.

Kagan explicitly said the First Amendment does not allow the government to ban "offensive" speech

Klein falsely claimed that "Kagan argued it may be proper to suppress speech because it is offensive to society or to the government." The subheadline of Klein's article asserted that Kagan "argued for ban of speech 'offensive' to society, government." In the body of the article, Klein wrote: "Also in a 1996 paper, 'Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine,' Kagan argued it may be proper to suppress speech because it is offensive to society or to the government."

In fact, Kagan specifically stated that "government may not limit speech because other citizens deem the ideas offered to be wrong or offensive." In the very law review article Klein cited, Kagan said:

Third, and as a corollary to these proscriptions, the government may not privilege either ideas it favors or ideas advancing its self-interest -- for example, by exempting certain ideas from a general prohibition. Justice Scalia summarized these tenets in R.A.V.: "The government may not regulate [speech] based on hostility --or favoritism -- towards the underlying message expressed."'

To this statement of illicit motive, one further gloss must be added: the government may not limit speech because other citizens deem the ideas offered to be wrong or offensive -- or for that matter, because they see the ideas as threatening to incumbent officials. This ban echoes those just stated, except for the identity of the party (above the government, now the public) that disapproves the ideas; the theory is that this substitution of party name should make no constitutional difference.*

Legal experts find Kagan's views on free speech in the mainstream

Even Fox's Kelly calls Kagan "pretty middle of the road" on "free speech matters." As Media Matters for America has documented, legal experts have stated that Kagan's views on free speech are within the mainstream. Libertarian First Amendment scholar Eugene Volokh, for example, 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." Former Chicago Law School Dean Geoffrey Stone stated that Kagan has approached First Amendment issues "without even a hint of predisposition." And Fox News' Megyn Kelly has said that "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.

Klein has repeatedly misled about Kagan

Klein's reporting based on false attacks, distortions. In his reporting on Kagan's nomination at WorldNetDaily, Klein has distorted Kagan's record to falsely suggest she supported state sponsors of terrorism by asking the Supreme Court not to hear a case against the Saudi royal family; attacked Kagan for her admiration of an Israeli judge even Scalia has praised; and assailed Kagan for being associated with what he called a "pro-abortion group" even though conservatives have previously said that personal and political views should not determine whether a justice is fit to serve on the Supreme Court.

Posted In
Government, Nominations & Appointments, The Judiciary
Network/Outlet
WorldNetDaily
Person
Aaron Klein
Stories/Interests
Supreme Court Nominations, Elena Kagan
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