The Washington Times baselessly claimed that Elena Kagan's views on free speech put her " 'outside the mainstream' of the public." To make its case, the Times relied on distortions, out-of-context quotes, and recycled falsehoods.
Wash. Times distorts Kagan's article to claim she believes government “doles out” speech rights “as a 'favor' ”
Wash. Times distorted Kagan's words to claim she “was saying that it's not the citizenry that presumptively enjoys speech rights, but the government that doles out those rights as a 'favor.' ” From a May 25 Washington Times editorial:
Perhaps the most revealing exposition of Ms. Kagan's views came in a 49-page essay she wrote in 1992 for the Supreme Court Review, titled “The Changing Face of First Amendment Neutrality.” In this paper, she discussed two “free speech” cases at great length. In one of them, R.A.V. v. St. Paul, the Supreme Court struck down a law in Minnesota that would have banned certain forms of “hate speech,” which she described as a subset of the sorts of “fighting words” that do not enjoy automatic First Amendment protection. “May the government then permit some but not all fighting words?” she asked, “or is it constitutionally constrained from selectively doling out this favor?”
Yes, you read that right. Ms. Kagan was saying that it's not the citizenry that presumptively enjoys speech rights, but the government that doles out those rights as a “favor.”
In fact, Kagan was not arguing that rights come from the government rather than being inherent in the citizenry. In the law review article the Times cited, Kagan was not asserting that free speech comes from the government. Rather, she was analyzing the Supreme Court decisions in two Supreme Court cases, Rust v. Sullivan and R.A.V. v. St. Paul. In his majority opinion in R.A.V. v. St. Paul, Justice Antonin Scalia stated that “From 1791 to the present,” American society has permitted restrictions on certain categories of speech that are of “slight social value.” One of those categories is "fighting words" -- words that when uttered are likely to cause a fight. From Scalia's majority opinion:
The First Amendment generally prevents government from proscribing speech or even expressive conduct because of disapproval of the ideas expressed. Content based regulations are presumptively invalid. From 1791 to the present, however, our society, like other free but civilized societies, has permitted restrictions upon the content of speech in a few limited areas, which are “of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Chaplinsky, supra, at 572. We have recognized that “the freedom of speech” referred to by the First Amendment does not include a freedom to disregard these traditional limitations. See, e. g., Roth v. United States, 354 U.S. 476 (1957) (obscenity); Beauharnais v. Illinois, 343 U.S. 250 (1952) (defamation); Chaplinsky v. New Hampshire, supra, ( “fighting words” ); see generally Simon & Schuster, supra, at ___ (Kennedy, J., concurring in judgment) (slip op., at 4). [several citations omitted]
Like Kagan, Scalia specifically discussed in R.A.V. whether the government could “favor” or disfavor some speech. In R.A.V., the Supreme Court dealt with the question of whether a city ordinance that banned certain “fighting words” -- ones that incite anger on the basis of race, color, creed, religion or gender -- but did not ban all fighting words was constitutional. As Kagan noted in the law review article the Times cited, in the majority opinion in R.A.V., Scalia wrote: “The government may not regulate use based on hostility--or favoritism--towards the underlying message expressed.” Scalia later wrote:
The dispositive question in this case, therefore, is whether content discrimination is reasonably necessary to achieve St. Paul's compelling interests; it plainly is not. An ordinance not limited to the favored topics, for example, would have precisely the same beneficial effect. In fact the only interest distinctively served by the content limitation is that of displaying the city council's special hostility towards the particular biases thus singled out. [emphasis added]
Clarence Thomas said, “I don't see a role for the use of natural law in constitutional adjudication.” The Washington Times attacked Kagan for supposedly supporting the view that “the rights and the power both flow from the government to the people, rather than vice versa.” This echoes the Times previous assertion that Kagan promoted “the idea that speech rights are granted by government rather than inherent in the God-given nature of man.” But even Supreme Court Justice Clarence Thomas has rejected the idea of using “natural law in constitutional adjudication.” From Thomas' hearing:
As I indicated, I believe, or attempted to allude to in my confirmation to the Court of Appeals, I don't see a role for the use of natural law in constitutional adjudication. My interest in exploring natural law and natural rights was purely in the context of political theory. I was interested in that. There were debates that I had with individuals, and I pursued that on a part-time basis. I was an agency chairman.
Wash. Times recycles falsehoods from previous editorials to claim Kagan is anti-speech
Wash. Times again falsely suggested that Kagan said government creates wealth and therefore can regulate speech. Parroting its previous falsehood, the Times again claimed: “The Kagan idea of government as the pre-eminent societal entity is an attitude perfectly in keeping with her assertion in a 1996 essay that 'corporate wealth derives from privileges bestowed on corporations by the government. Individual wealth also derives from government action.' As with money, so too with speech rights.” In fact, in the comments the Times quotes, Kagan was actually arguing against one potential rationale for limiting corporate spending on campaigns, the argument that government created corporations and therefore can completely regulate their speech. Kagan stated:
The Court tried to distinguish Austin from Buckley, principally on the ground that corporate wealth derives from privileges bestowed on corporations by the government. But this argument fails, because individual wealth also derives from governmental action. What the Court recognized in Austin is only what is true in every case: direct regulation of speech occurs against a backdrop of law that, while not referring to speech, goes far toward structuring the sphere of public expression. The question in every case is whether the government may use direct regulation of speech to redress prior imbalances. [citation omitted]
Wash. Times again suggests that Kagan supports “the government being involved in the 'redistribution' of speech.” Repeating another falsehood from a past editorial, the Times editorial attacked Kagan because "[i]n both the 1996 essay and the 1992 article, she spoke of the government being involved in the 'redistribution' of speech."
In fact, Kagan has argued that courts are particularly suspicious about laws that are justified on diversity or redistributive grounds. In one of the articles from which the Times quotes for this point, Kagan noted that in Buckley v. Valeo, the Supreme Court stated: “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” She later added that “Buckley's antiredistribution principle has continuing importance: no Justice on the current Court would dispute the claim -- even if some Justices would dispute applications of it -- that the government may not restrict the speech of some to enhance the speech of others.” Kagan later argued that despite the language in Buckley, the case is best understood as establishing “an evidentiary tool designed to aid in the search for improper motive.” And Kagan says that there is an “increased probability” that “laws directed at equalizing the realm of public expression” or achieve “diversity” have such an improper motive. From Kagan's article:
The question remains, however, why the Court should treat as especially suspicious content-neutral regulations of speech -- such as the regulations in Buckley -- that are justified in terms of achieving diversity. If the Buckley principle serves as a means for flushing out illicit motive, then the answer must relate to some special characteristic(s) of these regulations that affect the motive inquiry. And in fact, the nature of these regulations, as compared with other content-neutral regulations, creates two problems (similar to those posed by standardless licensing schemes): first, that governmental officials (here, legislators) more often will take account of improper factors, and second, that courts will have greater difficulty detecting the presence of such tainted deliberations.
The increased probability of taint arises, most fundamentally, from the very design of laws directed at equalizing the realm of public expression. Unlike most content-neutral regulations, these laws not only have, but are supposed to have, content-based effects; their raison d'etre is to alter the mix of ideas-or, at least, of speakers, who tend to be associated with ideas-in the speech market. Given this function, these laws will have not the diverse, diffuse, and crosscutting content-based effects usually associated with content-neutral laws, but a set of targeted and coherent effects on ideas and speakers. This set of focused effects renders a law directed at equalization nearly as likely as a facially content-based law, and much more likely than most facially content-neutral laws, to stem from improper motive. In considering such a law, a legislator's own views of the ideas (or speakers) that the equalization effort means to suppress or promote may well intrude, consciously or not, on her decision-making process. The law thus raises grounds for suspicion.
Wash. Times again baselessly treats as controversial Kagan's claim that government can ban speech based on a “categorical balancing of the value of speech against its societal costs.” Repeating yet another baseless attack on Kagan, the Times asserted that Kagan “argued, in effect, that it is the judiciary that should determine which speech redistribution is acceptable or not. In her brief in a case just decided last week, Ms. Kagan argued that the government, acting ultimately through judges, must do a 'categorical balancing of the value of speech against its societal costs.' ” However, this argument is hardly controversial. In fact, Kagan's formulation echoes Scalia's statement in R.A.V. that “From 1791 to the present, however, our society, like other free but civilized societies, has permitted restrictions upon the content of speech in a few limited areas, which are 'of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.' ”
Wash. Times distorts Kagan's Oxford thesis to suggest she embraced activism
Wash. Times attacks Kagan for “accept[ing] the idea of 'supreme judicial authority in a political democracy.' ” From the Times editorial:
In her Oxford University thesis in 1983, the current nominee to the Supreme Court accepted the idea of “supreme judicial authority in a political democracy.” Moreover, “as participants in public life, judges will have opinions, prejudices, values. Perhaps most important, judges will have goals,” she stated. “And because this is so, judges will often try to mold and steer the law in order to promote certain ethical values and achieve certain social ends. Such activity is not necessarily wrong or invalid. The law, after all, is a human instrument - an instrument designed to meet men's needs.”
Kagan made clear in her Oxford thesis that judicial rulings must be rooted in legal principles in order for them to be legitimate in a democratic system. Kagan repeatedly made clear that judicial rulings must also be rooted in legal principles in order for them to be legitimate in a democratic system. In the introduction to her thesis, Kagan wrote:
First, some have argued that only the methods of reason and principle justify supreme judicial power in a democracy. Why, after all, should nine appointed lawyers play so large a role in a democratic nation? Only because these nine lawyers arrive at their decisions in a unique and inherently valuable way -- only because these lawyers resolve all issues by reference to law and legal principle.
In the conclusion, Kagan explicitly endorsed the theory that judges must ground their decisions in legal principles in order for them to be legitimate in a democratic system:
The judge must make principled decisions for three reasons. First, only the methods of principle and reason can justify supreme judicial authority in a political democracy. Second, only those methods can guarantee that the public will continue to accept and support the Supreme Court's role in the American system of government. Third -- and most important from our point of view -- only those methods can ensure that. opinions will have a lasting effect. [emphasis added]
Scalia states that “it's judges' work” to decide whether a statute conflicts with the Constitution. During 2005 remarks Scalia stated:
Some modern constitutions give the constitutional court explicit authority to review German legislation or French legislation for its constitutionality, our Constitution doesn't say anything like that. But John Marshall says in Marbury v. Madison: Look, this is lawyers' work. What you have here is an apparent conflict between the Constitution and the statute. And, all the time, lawyers and judges have to reconcile these conflicts -- they try to read the two to comport with each other. If they can't, it's judges' work to decide which ones prevail. When there are two statutes, the more recent one prevails. It implicitly repeals the older one. But when the Constitution is at issue, the Constitution prevails because it is a “superstatute.” I mean, that's what Marshall says: It's judges' work.
Kagan's First Amendment views are mainstream and “generally pretty speech-protective”
First Amendment scholar Volokh predicts that -- like Justice Ginsburg -- Kagan will likely be “generally pretty speech-protective.” Conservative media have repeatedly distorted Kagan's statements to suggest that she is anti-free speech. However, libertarian law professor and First Amendment expert 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.
NY Times reports there are indications Kagan's “views on government regulation of speech were closer to the Supreme Court's more conservative justices, like Antonin Scalia.” The New York Times reported in a May 14 article:
In her early years as a law professor, Elena Kagan wrote almost exclusively on the First Amendment. There are indications in those writings that her views on government regulation of speech were closer to the Supreme Court's more conservative justices, like Antonin Scalia, than to Justice John Paul Stevens, whom she hopes to replace.