Legal experts contradict Limbaugh's claim that Kagan “doesn't like” First Amendment

Conservatives -- including Rush Limbaugh -- have falsely claimed that Supreme Court nominee Elena Kagan opposes free speech. In fact, legal experts such as libertarian First Amendment scholar Eugene Volokh have stated that Kagan's views on free speech are within the mainstream.

Limbaugh on Kagan: “The First Amendment is something she doesn't like.” From the May 12 edition of Premiere Radio Networks' The Rush Limbaugh Show:

LIMBAUGH: Why did Obama pick Kagan? Everybody -- there are cartoons about her qualifications and lack thereof. Let me tell you who she is. She is a budding communist. This is a woman who believes that we ought to have somebody in charge of who can say what. This is a woman who believes that free speech needs to be regulated by an independent body that will decide whether or not what you say is harmful to somebody else, then you can't say it. Kagan says a government motive is proper focus in a First Amendment case. She backs limits on speech that can do harm.


LIMBAUGH: What else do you need to know? The First Amendment is something she doesn't like.

Fox Nation falsely suggested Kagan favored government-coerced “disappear[ance]” of speech. Fox Nation falsely suggested that 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. From the Fox Nation:

WND headline: “Kagan: Some speech can be 'disappeared.' ” A May 10 post on WorldNetDaily falsely suggested that Kagan believes that “some speech can be 'disappeared.' ” WND included a quote from Kagan's article that showed that the suggestion that she favored government-coerced disappearance of free speech is false. “Kagan argued for government 'redistribution of speech.' ” In a May 12 post, suggested that Kagan was anti-free speech by claiming that she “argued for government 'redistribution of speech' in her 1996 University of Chicago Law Review article 'Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine.' ”

Legal experts find Kagan's views on free speech to be mainstream

First Amendment scholar Volokh estimates that -- like Justice Ginsburg -- Kagan will likely be “generally pretty speech-protective.” Libertarian law professor and First Amendment scholar 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.