Fox Nation falsely suggested that Solicitor General and Supreme Court nominee Elena Kagan argued that speech promoting “racial or gender inequality” could be “disappeared” by the government. In fact, in the article Fox Nation cited, Kagan actually stated that “the uncoerced disappearance of such speech would be cause for great elation”; she did not advocate for a government ban on all such speech.
Fox Nation falsely suggested Kagan favored government-coerced “disappear[ance]” of speech. Fox Nation featured the headline: “Kagan: Some Speech Can Be 'Disappeared,' ” linking to a WorldNetDaily.com article with the same headline. From the Fox Nation:
Kagan article did not endorse allowing government to “disappear” speech. In its article, WorldNetDaily cited an essay Kagan wrote to claim that Kagan “argued certain forms of speech that promote 'racial or gender inequality' could be 'disappeared.'.” In fact, in her essay, Kagan addressed government attempts to regulate hate speech and pornography consistent with First Amendment principles. Kagan stated:
This Essay on the regulation of hate speech and pornography addresses both practicalities and principles. 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. I do not take it as a given that all governmental efforts to regulate such speech thus accord with the Constitution.
Kagan: The First Amendment presumption against allowing the government to engage in “viewpoint discrimination” “has real worth.” Kagan wrote in conclusion:
The presumption against viewpoint discrimination, relied upon in Hudnut and further strengthened in R.A.V., has come to serve as the very keystone of First Amendment jurisprudence. This presumption, in my view, has real worth, in protecting against improperly motivated governmental action and against distorting effects on public discourse. And even if I assign it too great a value, the principle still will have to be taken into account by those who favor any regulation either of hate speech or of pornography.
Law professor Volokh estimates that, like Justice Ginsburg, Kagan will likely be “generally pretty speech-protective.” Libertarian law professor 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:
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.