Rush Limbaugh and Glenn Beck have falsely claimed that Elena Kagan wants to censor right-wing speech. In fact, in the article they cited, Kagan specifically stated that the government “may not restrict” speech “because it disagrees with ... the ideas espoused by the speaker.”
Limbaugh and Beck falsely claim Kagan believes government can regulate conservative speech
Limbaugh falsely suggests Kagan believes government can ban speech that does “harm” to Obama. On May 12, Limbaugh said of Kagan: “The First Amendment is something that she doesn't like. The government should have the authority to restrict free speech when they think it's doing harm. Like to who? Obama?” As evidence, he read part of a CNSNews.com article that cited a 1996 article Kagan wrote titled “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine. From Limbaugh's comments:
LIMBAUGH: The First Amendment is something she doesn't like. The government should have the authority to restrict free speech when they think it's doing harm. Like to who? Obama? Kagan, who is the Solicitor General ”expressed that idea in her 1996 article in the University of Chicago Law Review entitled, 'Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine.' " Now this puts her in the camp with one of the czars, Cass Sunstein, who believes the same thing. So, as far as I'm concerned, I don't care what else she's done. I don't care how much she's written on Post-It Notes. I don't care how much she's written anywhere. This puts her in the Hugo Chavez world, folks. This aligns her with Communist dictators throughout history. The government will determine when speech is proper. She thinks that's OK.
Beck falsely claims Kagan believes that “if there's too much dangerous Glenn Beck or Rush Limbaugh,” the government can take action to “balance out the opinion.” On the May 13 edition of his Fox News show, Beck distorted a quote from the same 1996 Kagan article, saying:
BECK: Well, we've got to read a 1996 paper in which she wrote, quote, “If there is an 'overabundance' of an idea in the absence of direct governmental action -- which there might well be when compared with some ideal state of public debate -- then action disfavoring that idea might 'unskew,' rather than skew, public discourse.”
OK, so that -- so if that's too much -- if there's too much dangerous Glenn Beck or Rush Limbaugh, or too much talk radio, action by the government can unskew things and balance out the opinion. You see? That's your new Supreme Court nominee.
Reality: Kagan explicitly said First Amendment doesn't allow government to ban speech it doesn't like
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 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.
First Amendment expert predicts that, Kagan will likely be “generally pretty speech-protective.” Libertarian law professor Eugene Volokh, whose UCLA bio describes him as “a nationally recognized expert on the First Amendment,” examined Kagan's scholarship on the First Amendment, including the article that Beck distorted. Volokh 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.
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.
Reality: Kagan was describing how the Court deals with First Amendment cases, not stating her own philosophy
Kagan's article was “primarily ... descriptive,” and did not say that free speech law “should be concerned exclusively with governmental motivation.” From Kagan's article:
I am not about to craft (yet another) all-encompassing -- which almost necessarily means reductionist -- theory of the First Amendment. First, what follows is primarily a descriptive theory; although I discuss its normative underpinnings, I make no claim that a sensible system of free speech should be concerned exclusively with governmental motivation.