Media Matters: The right wing alleges Kagan hates the Constitution

The right-wing smear campaign against Supreme Court nominee Elena Kagan soldiered on this week, with media figures repeating the falsehood that Kagan “doesn't like the Constitution”

the First, Second, Fifth, and 14th amendments, in particular.

The relentless right-wing war on Kagan

The right-wing smear campaign against Supreme Court nominee Elena Kagan soldiered on this week, with media figures repeating the falsehood that Kagan "doesn't like the Constitution"

the First, Second, Fifth, and 14th amendments, in particular.

De facto GOP leader Rush Limbaugh falsely claimed that Kagan has said the government could ban books and pamphlets like Thomas Paine's Common Sense. Likewise, WorldNetDaily's Nat Hentoff falsely suggested that Kagan supports prohibiting individuals from distributing pamphlets that criticize the government. In fact, Kagan did not advocate for restrictions on individuals' rights to political speech. Rather, in her position as solicitor general, she argued that the government could penalize corporations and unions -- not individuals -- for distributing political pamphlets that advocate for the election or defeat of a candidate, which, she argued, would protect individuals from “distortion of the electioneering that is done by corporations.”

WorldNetDaily's Aaron Klein also falsely suggested that Kagan supports government “disappear[ing]” some speech and contrasted that claim with Kagan's statement that government bans on flag burning are unconstitutional. In fact, Kagan has clearly stated that the government “may not restrict” speech simply “because it disagrees with” it. Further, her position that government bans on flag burning are unconstitutional is consistent with conservative Supreme Court Justice Antonin Scalia's position.

But despite all the fuss about Kagan's views on the First Amendment, legal experts -- and even Fox News' Megyn Kelly -- agree that Kagan's views on free speech are in the mainstream.

Next, columnist Ken Klukowski and's Ken Blackwell fearmongered that Kagan was also against the Second Amendment. As evidence, Blackwell and Klukowski cited Kagan's decision as solicitor general not to file a brief in McDonald v. City of Chicago, a case dealing with the question of whether the Second Amendment individual right to keep and bear arms applies to the states through the “incorporation” doctrine, under which certain protections of the Bill of Rights apply to the states. In fact, Kagan's decision not to file a brief in this particular kind of case is in line with what other solicitors general have done in the past. As the Constitutional Accountability Center's Doug Kendall pointed out, the solicitor general actually “has a tradition of not weighing in on incorporation cases at all, regardless of where it may stand on the merits of the case.” Kendall also stated that Kagan's decision not to file a brief “tells us nothing meaningful about Kagan's views on the Second Amendment.” As Media Matters has noted, one cannot infer what Kagan's personal legal opinions are from her actions on behalf of the United States as solicitor general.

On May 20, Glenn Beck falsely claimed on his radio show that Kagan supports holding suspected terrorists “without due process, indefinitely.” In fact, during her February 2009 solicitor general confirmation hearing, Kagan agreed that a detainee “has to have substantial due process” and that an “independent judiciary” would have to ultimately decide if a detainee is an enemy combatant.

This week, the smear that Kagan is “anti-military” also refused to die. A May 18 Washington Times editorial falsely claimed that Kagan “bann[ed] military recruiters from Harvard Law School” and baselessly claimed: “It's obvious where her heart is -- and that's not with Americans in uniform.” Similarly, Kurt Schlichter wrote in a Times op-ed that Kagan and HLS “hold those who wear a uniform of the United States military in contempt.”

But as Media Matters has documented, Kagan's support for the military is well established. Kagan frequently expresses respect for the military while denouncing its Don't Ask, Don't Tell policy as discriminatory. Students had access to military recruiters during Kagan's entire tenure as dean through the Harvard Law School Veterans Association. Also, Harvard Law veterans have debunked this claim, among them one who wrote in The Washington Post today that Kagan “treated the veterans at Harvard like VIPs, and she was a fervent advocate of our veterans association.”

Even Fox News' Brit Hume doesn't buy these baseless attacks on Kagan, saying that “there's no evidence” that Kagan is extreme. Likewise, Andrew Napolitano, Lis Wiehl, and Stephen Hayes have praised Kagan. If all of Fox News isn't even on board, it might be time for the right-wing noise machine to give it a rest.

For an updated list of myths and falsehoods about Elena Kagan's Supreme Court nomination, click here.

Fox's race problem continues

Fox Sports looked a little bit like Fox News this week after comments made by Fox Sports host Chris Myers on Monday about the victims of Hurricane Katrina. Speaking about the flooding in Nashville, Myers stated: “We have disasters issues when people pull together and help themselves and I thought the people in Tennessee, unlike -- I'm not going to name names -- when a natural disaster hits, people weren't standing on a rooftop trying to blame the government, OK.” Myers went on to refer to the people of Nashville as “hardworking, tax-paying, legal American citizens.” Myers' comments were of course obtuse and offensive. Over 1,800 people perished in Katrina, many from drowning. The people on the rooftops did have a message directed at the government -- "HELP!"

Myers earned “Worst Person” honors and Ed Schultz pointed out that Myers has “Fox News potential” and “drove right into the Rush Limbaugh territory.” Fox Sports president Ed Goren told Media Matters that there would be "internal discussions" about Myers' comments and then later said it was a “serious elevated discussion with Mr. Myers.”

On Thursday night, Myers and Goren reportedly called New Orleans Mayor Mitch Landrieu to apologize, and Myers issued a written apology to Landrieu stating, in part, “I would very much like to apologize to you and the people of New Orleans for the inappropriate and insensitive remarks I made this past Monday. Clearly, these remarks demonstrated poor judgment and I sincerely regret making them.”

Myers' comments are just the latest example of News Corp.'s race problem, a problem that usually rears its ugly head on Fox News. On Thursday, John Stossel defended comments made by Rand Paul, the Republican Senate candidate in Kentucky, in which Paul criticized the public accommodation section of the Civil Rights Act. Stossel said: “I would go further than he was willing to go, as he just issued the statement, and say it's time now to repeal that part of the law.” He explained: "[P]rivate businesses ought to get to discriminate. And I won't ever go to a place that's racist and I will tell everybody else not to and I'll speak against them. But it should be their right to be racist." According to Stossel's logic, those businesses that discriminated “eventually” would have “lost business. The free market competition would have cleaned the clocks of the people who didn't serve most customers.”

In fact, Stossel's comments were as erroneous as they were offensive. In an interview with Media Matters, Andrew Grant-Thomas, deputy director of the Ohio State University's Kirwan Institute for the Study of Race and Ethnicity, characterized Stossel's comments as “a silly statement,” adding, “Market forces hadn't exactly made anti-black discrimination disappear during the several centuries before the Civil Rights Act.”

Conservative media boycotts legitimate public debate on immigration

Conservative media had some fun this week with the news that Attorney General Eric Holder and Homeland Security Secretary Janet Napolitano had expressed concerns about Arizona's new immigration law before personally reading the text of the statute. (Because if there's anyone who reserves judgment about a bill before they have read through it, it's certainly the right-wing media.) So far it hasn't been shown that Holder or Napolitano misunderstand the law or that they have misrepresented its provisions. Which is more than we can say for Fox News.

Among the immigration misinformation pushed by Fox this week: the claim that the Arizona law directs law enforcement officers to question the immigration status of only those already suspected of committing an unrelated crime; the claim that prior to the new law, police officers in Arizona "could not ask" about the immigration status of criminals; the claim that it is “a gigantic lie" that the law could result in racial profiling; and the myth that border states are "inundated with violence and with crime" caused by undocumented immigrants.

When they weren't misrepresenting the law and the situation in Arizona, conservative media were accusing the Obama administration of “apologizing” for America by publicly stating its unease about Arizona's law. First, Assistant Secretary of State Michael Posner said in a briefing that the Arizona law was discussed during talks with China as “an indication that we have to deal with issues of discrimination or potential discrimination.” Then, President Obama stated in a press conference with Mexican President Felipe Calderon that the Arizona law “has the potential of being applied in a discriminatory fashion.” Never mind that conservatives, including several on Fox News, have also criticized the law. You're not supposed to do it with foreigners around. Why? Because Glenn Beck -- yes, Glenn. Beck. -- says we're "a family."

Fox also accused Obama of maligning law-enforcement officers by saying that racial discrimination could result from the implementation of the Arizona law. And Fox went after Calderon for saying that the law will lead to racial profiling. The law, they insist, specifically prohibits racial profiling. Only problem is, legal experts say the language of the statue does not actually settle the question of whether racial profiling will occur. Indeed, law-enforcement officers and legal experts have reason to believe it inevitably will.

Rather than hosting any of those legal experts to discuss immigration, Fox News did bring on Phil Kent to attack a Georgia college student who was recently found to be undocumented. Kent works for an organization with close ties to white nationalists and for its sister organization, which laments on its website that “fewer than 15% of our immigrants come from Europe and share the heritage that made America strong.” According to The Atlanta Journal-Constitution, Kent himself was widely regarded as “racist” when he presided over the editorial page of The Augusta Chronicle. Kent has called Obama “the dangerous, anti-white multiculturalist.”

And if you thought this debate couldn't get more worthless, conservative media also spent some time this week speculating about whether Miss Oklahoma did not win the Miss USA pageant because during the part of the pageant where they're allowed to speak, Miss Oklahoma said she supports Arizona's right to pass the immigration law.

This weekly wrap-up was compiled by Jocelyn Fong, Brian Frederick, and Brooke Obie.