JHo sends along this CNSNews overview of SCOTUS nominee Elena Kagan’s views on speech as outlined in a 1996 article published in the U of Chicago Law Review. From CNS:
In her article, Kagan said that examination of the motives of government is the proper approach for the Supreme Court when looking at whether a law violates the First Amendment. While not denying that other concerns, such as the impact of a law, can be taken into account, Kagan argued that governmental motive is “the most important” factor.
In doing so, Kagan constructed a complex framework that can be used by the Court to determine whether or not Congress has restricted First Amendment freedoms with improper intent.
She defined improper intent as prohibiting or restricting speech merely because Congress or a public majority dislikes either the message or the messenger, or because the message or messenger may be harmful to elected officials or their political priorities.
The first part of this framework involves restrictions that appear neutral, such as campaign finance laws, but in practice amount to an unconstitutional restriction. Kagan wrote that the effect of such legislation can be taken as evidence of improper motive because such motives often play a part in bringing the legislation into being.
“The answer to this question involves viewing the Buckley principle [that government cannot balance between competing speakers] as an evidentiary tool designed to aid in the search for improper motive,” Kagan wrote. “The Buckley principle emerges not from the view that redistribution of speech opportunities is itself an illegitimate end, but from the view that governmental actions justified as redistributive devices often (though not always) stem partly from hostility or sympathy toward ideas or, even more commonly, from self-interest.”
Kagan notes, however, that such “redistribution of speech” is not “itself an illegitimate end,” but that government may not restrict it to protect incumbent politicians or because it dislikes a particular speaker or a particular message.
The U.S. Supreme Court (AP File Photo/Evan Vucci)
She argued that government can restrict speech if it believes that speech might cause harm, either directly or by inciting others to do harm.Laws that only incidentally affect speech are constitutional, Kagan said, because the government’s motive in enacting them is not the restriction of First Amendment freedom but the prohibition of some other – unprotected – activity.
She argues in the piece that a law banning fires in public places is not unconstitutional, even if it means that protesters cannot burn flags in public. A law outlawing flag burning protests, however, would be, because the motive is to stop a particular protest.
Kagan also argued that the Supreme Court should not be concerned with maintaining or protecting any marketplace of ideas because it is impossible for the court to determine what constitutes an ideal marketplace, contending that other types of laws, such as property laws, can also affect the structure of the marketplace of ideas and that a restriction on speech may “un-skew” the market, rather than tilt it unfavorably.
“If there is an ‘overabundance’ of an idea in the absence of direct governmental action — which there well might be when compared with some ideal state of public debate — then action disfavoring that idea might ‘un-skew,’ rather than skew, public discourse,” Kagan wrote.
Instead, the Supreme Court should focus on whether a speaker’s message is harming the public, argued Kagan in her article.
While Kagan does not offer an exhaustive definition of ‘harm,’ she does offer examples of speech that may be regulated, such as incitement to violence, hate-speech, threatening or “fighting” words.
The government, she concludes, may not express its disfavor with an opinion or speaker by burdening them with restrictions or prohibitions, unless it can show that their speech is causing some type of public harm.
“The doctrine of impermissible motive, viewed in this light, holds that the government may not signify disrespect for certain ideas and respect for others through burdens on expression,” Kagan wrote. “This does not mean that the government may never subject particular ideas to disadvantage. The government indeed may do so, if acting upon neutral, harm-based reasons.”
Kagan says that government is also prohibited from treating two identically harmful speakers differently. To do so, she argues, would be to violate what she views as the principle of equality — making the unequal restriction unconstitutional.
“But the government may not treat differently two ideas causing identical harms on the ground that thereby conveying the view that one is less worthy, less valuable, less entitled to a hearing than the other,” she wrote. “To take such action — in effect, to violate a norm of ideological equality — would be to load the restriction of speech with a meaning that transcends the restriction’s material consequence.”
If we are to agree with CNS’s characterizations (I haven’t had an opportunity yet to read the U of Chicago Law Review article), the vast majority of what Kagan argues here with respect to speech seems sound.
Where I’d differ with her — and this would be the point of contention between our views that I’d want her to speak to at a confirmation hearing — is in her inclusion, in the category of “harmful” speech, of “hate-speech” as an instance of speech that may be legitimately regulated.
While hate speech can overlap the category of “harmful” speech that incites to violence, the Court had better be absolutely certain that such speech is the proximate and direct cause of such incitement before it agrees to regulate such instances of speech; beyond that, “hate speech” as a category should be abandoned altogether, in my view of the First Amendment — not least because we’ve heard many in the government recently decrying as “hate-speech” much of the current opposition to President Obama’s legislative agenda.
Hate-speech, or speech motivated by hatred (of which, presumably, “racist” speech is a prime example) is, under current descriptions — and if one accepts the mainstream “liberal” premise that opposition to both Obama and the Democrat Congress is a function of racism — the de facto speech of those who oppose either or both.
— Which should illustrate just how dubious such a category for classifying speech can be, and give those on both sides of the political divide plenty of pause.
There are plenty of reasons to make sure Kagan gets a thorough ideological vetting. But her stance on speech — at least from what I’ve read here — doesn’t seem too far afield from that of many other legal scholars, and in fact on some questions seems more consistent with legal conservatism than that of most “liberal” justices.
Or am I missing something?
Discuss.
****
update: From Jacob Sullum, Reason:
There is evidence in Kagan’s academic articles that her overzealous defenses of federal censorship were more than a function of her job. In a 1993 essay published by The University of Chicago Law Review, for instance, she suggested how supporters of bans on pornography and “hate speech” could pursue their goals despite that pesky First Amendment. Her proposals included bans on “works that are both sexually explicit and sexually violent,” a redefinition of obscenity to focus on material deemed harmful to women (which would then be unprotected—an idea that anticipated Kagan’s argument in the animal cruelty case), “hate crime” laws that boost penalties for existing offenses when they’re motivated by bigotry, and laws “prohibiting carefully defined kinds of harassment, threats, or intimidation.”
More fundamentally, Kagan’s understanding of First Amendment law, described most fully in a 1996 University of Chicago Law Review article, suggests a tolerance for censorship when it is appropriately disguised by euphemisms. In Kagan’s view, the main goal of First Amendment doctrine is not to maximize freedom or promote robust debate but to ferret out impermissible motives for speech restrictions.
While the government may constitutionally restrict speech based on “neutrally conceived harms,” Kagan says, it may not restrict speech based on “hostility toward ideas.” But as she herself more or less acknowledges, this distinction ultimately collapses because people are hostile to ideas they consider harmful.
Whether the issue is pornography, bigotry, dogfight videos, or political ads sponsored by corporations, would-be censors always claim the speech they want to outlaw causes harm. Without a theory about what sort of harm (if any) can justify speech restrictions, we are left with the “ad hoc balancing of relative social costs and benefits” that the First Amendment was intended to prevent.
This essentially repeats and amplifies my major concern with Kagan’s views — the indeterminate nature of what comes to count as “harmful” being dependent upon what one comes to count as a motive to cause harm. Insofar as Kagan is willing to restrict the category of “harmful” speech to what has been its preexisting and narrowly defined parameters, she wouldn’t run afoul of legal conservatism — though as a solicitor for the government she did argue that such parameters should be widened to include new exceptions. Whether this was in keeping with her own beliefs or a function of her advocacy for the government’s arguments remains to be determined.
Which is why again I would press her on that point.
No… I’m actually suprised by that.
Not terrible at all, if that’s how she’ll rule. I don’t know how that squares with the reports of her comment about the ‘social value’ or whatever of speech.
Jeff – Great points. I could not fine where she defined or clarified what she would consider as harm, but giving her the benefit of the doubt, those standards do not seem to fall too far away from where the boundaries currently are.
I am not sure she is not a bit more dangerous than you think – see http://reason.com/archives/2010/05/12/the-bounds-of-silence for a bit more on her writings that really kind of come out as bothersome.
http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/08-769_Petitioner.pdf is not very reassuring – “This Court has recognized that some categories of
speech lack First Amendment protection, because the
speech has little or no expressive value and causes serious
societal harms. Whether a given category of speech enjoys
First Amendment protection depends upon a categorical
balancing of the value of the speech against its societal
costs”
Societal costs? Like Tipper Gore deciding bad words in music hurt The Children?
Except who gets to define what constitues “harmful” or “hateful.”
Because, as we’ve seen, currently it’s the listener to gets to decide whether the speech is hateful, and “hateful” has come to mean “I hate what you said, you vile racist/sexist/homophobe” as the listener confuses his or her visceral dislike of the speaker or message with the speaker’s intent.
“Harmful” is problematic for the same reason.
And given that the chattering class pops off terms such as “permission words” and “incitement” with blithe abandon, cordoning off even “incitement” as non-protected speech becomes a problem.
I need to ask: when, in the history of radio broadcasting, has a political commenter ever “incited” violence? We can go all Godwin and note that Nazi Germany was rife with anti-Jewish (anti-capitalist) propaganda that shaped the opinions of many.
But the actual violence against Jews? Was that a spontaneous event provoked by the propaganda, or was it fomented by the Nazis themselves, and the propaganda just gave them cover for what they were doing?
Better yet, let’s limit the question to the U.S.: When has anyone committed violence because of stuff they heard on the radio? That includes the unbalanced who are on the verge of doing something horrible anyway, and a “permission word” set them off.
Ever happened? Ever?
Except in The Fisher King, I mean.
Well, LTC John, I linked that the other day. But here, she seems to be talking about societal costs in terms of already established constraints (incitement to riot, threats, fighting words, etc.).
The one exception, as I noted, is “hate-speech.”
Again, I haven’t read her article. But if what she means by societal costs is just a rather “activist”-sounding way of referring to the limited restrictions society has determined fall outside of the purview of protected speech — and her acknowledging that “prohibiting or restricting speech merely because Congress or a public majority dislikes either the message or the messenger, or because the message or messenger may be harmful to elected officials or their political priorities” is an improper reading of the First Amendment is an indication that she seems to be shying away from “public readings” that redound to current mood — I can’t truly say I find fault with the philosophy as espoused here, outside the exception I already noted.
Well yes. That’s the point of my objection. But the fact of the matter is, what has been defined as harmful in the past is things like “fighting words” and incitement to riot.
Perhaps she should be questioned about her view of the necessity of some expansion of the category of “harmful” speech; but that there is a harmful speech exception to free speech certainly predates her.
I haven’t read the Reason piece, but I will.
"Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs”
I have to agree with the LTC. "Attendant harms to public morality" (from the Certiorari) is not the business of SG Kagan, nor should they be of a Justice Kagan.
Okay. I have read the Reason piece and updated the post.
SW —
Depending on what Kagen means by “societal costs”: many contend only that she means society has seen fit to balance free speech against “fighting words” and other exceptions it has in the past determined outweigh the cost of free speech absolutism.
If she merely using an inartful term to describe an established exception, I can’t get too upset. Where I worry is that she includes something as indeterminate as “hate-speech” in her category of “harmful” speech. As Sullum notes, turning pornography into anti-women hate-speech can lead to “legitimizing” the censoring of all material deemed harmful to women.
While I am generally enthusiastic about Roberts and Alito, they often defer to executive power.
We need justices who say things like this: “Words do have a limited range of meaning, and no interpretation that goes beyond that range is permissible.”
or this
“It is one of the unhappy incidents of the federal system that a self-righteous Supreme Court, acting on its Members’ personal view of what would make a ‘more perfect Union’ (a criterion only slightly more restrictive than a ‘more perfect world’) can impose its own favored social and economic dispositions nationwide.”
or this
“Avant-garde artistes such as respondents remain entirely free to épater les bourgeois [shock the middle classes]; they are merely deprived of the additional satisfaction of having the bourgeoisie taxed to pay for it. It is preposterous to equate the denial of taxpayer subsidy with measures ‘aimed at the suppression of dangerous ideas.'”
or this
“‘The operation was a success, but the patient died.’ What such a procedure is to medicine, the Court’s opinion in this case is to law.”
In Kagan’s view, the main goal of First Amendment doctrine is not to maximize freedom or promote robust debate but to ferret out impermissible motives for speech restrictions.
Yikes. As per youzh, this lawyer sees written law as a labyrinth wherein one employs cleverness to find the secret exits.
Also, it doesn’t really matter if they robustly question her about anything. Her confirmation or lack thereof is pretty much a fait accompli prior to the hearing, the hearing being a forum for Senators to wax Stentorious and Important.
épater les bourgeois
Oooh, thanks for that. I keep forgetting the phrase.
Exactly, Jeff. We have “hate speech” legislation in the UK:
I fear SG Kagan is using “hate speech” in this sense, which of course is anathema to anyone who values freedom of speech.
Living on the frontlines of the Leftist War on Reason, I have a foxhole view of the courts in limiting speech. Take the recent decision made by Judge Mosman to subvert the free speech rights of business people in this state.
http://www.firstamendmentcenter.org/news.aspx?id=22938
My comments are here:
http://oregonguythinks.blogspot.com/2010/05/oregon-porn-hatred-of-private-sector.html
Pardon the pedestrian comment, but I get queasy anytime someone starts finding exceptions, even things like “fighting words,” in the very simple phrase, “Congress shall make no law . . . abridging the freedom of speech,” no matter what their motivation. It never works out well in the end.
“but to ferret out impermissible motives for speech restrictions”
So, making a pile of impermissibles over here may imply simultaneously building an over-the-shoulder-chucked pile of permissibles over there?
Kagan also argued that the Supreme Court should not be concerned with maintaining or protecting any marketplace of ideas because it is impossible for the court to determine what constitutes an ideal marketplace
If this stand in opposition to all forms of government mandated ‘fairness,’ ‘equal time,’ or ‘neutrality’ then I am in agreement.
But then, I’m just a soul whose intentions are good…
R. Sherman,
I am likewise pretty much an absolutist on free speech, save for the incitement to violence qualification Jeff noted in the post – “proximate and direct cause of” – as well as defamation. I wonder what SG Kagan thinks of a group of citizens banding together to make a political film?
What y’all have brought up, and linked to, was exactly my concern in the unclarified nature of the use of “harm”.
Laws that only incidentally affect speech are constitutional, Kagan said, because the government’s motive in enacting them is not the restriction of First Amendment freedom but the prohibition of some other – unprotected – activity.
I’m not so sure about this bit, as it would seem like a sign that if you, as the government, weren’t obvious in your attempt to stifle speech then this line of thinking would allow you to get away with it.
As to the worries above over who gets to decide what constitutes harmful or hateful speech, she does seem to have that covered in this part.
Which seems like a good sign.
At the pdf, Kagan states:
So she’s reading and attributing an intent (or object) to the Court, though the Court over decades can be presumed to have changed in its membership. And she will call the “primary” “unstated” thing a doctrine.
I would rest easier with the notion of a Justice Kagan if she was more like Chief Justice Roberts*.
I’ve been thinking about Citizens United v. FEC and wondering if it’s reasonable to consider her statements as SG relevant. Or can that be seen as simply advocating for the Executive?
‘Cause that goes directly to a fundamental rejection of the First Amendment.
Or, what Silver Whistle brings up at #18.
Coffee. Need coffee.
Well, sure, SW. But it’s doubtful somebody like Obama would nominate somelike like Roberts.
I think were she pressed into an answer about the permissibility of broadening “harm”, as it is currently understood and narrowly applied, we would have a much clearer idea of what we were getting.
Interestingly, if you read the piece bh linked, many on the left find Kagen too far on the right with respect to speech.
She could be affecting a pragmatic balancing act suggestive of no real fundamental ideological grounding (O’Connor and Miers both suffered from same, in my opinion); or she could simply be someone whose intellectual proclivities, from the perspective of ideology, move her to the right despite her social desire (common among academics) to remain firmly on the left.
Or in other words, perhaps she IS a stealth candidate, albeit one who may be convinced to move to the right on a number of issues, given some of her prior reasoning.
It’s doubtful, but Obama is more about cronyism than he is about principles. Maybe he made a mistake.
Whether the issue is pornography, bigotry, dogfight videos, or political ads sponsored by corporations, would-be censors always claim the speech they want to outlaw causes harm.
That’s actually a very good point. It’s all in what constitutes harmful. I’ve never seen anyone say they want to ban anything they consider harmless.
bh, that is what I was alluding to in #18. I don’t think you can take her position on it at face value, as she is charged with presenting the government’s case. I don’t know if the confirmation hearings will get her personal viewpoint on it either, but it would be interesting to know where she stands on the issue.
Based on the thin gruel that is Kagan’s writing to this point, I think it’s a safe assumption that she was raised up in the same Ivy League Manchurian candidate factory that produced Obama.
He has no resume, the press made him president; she has no experience, let’s make her a Justice!
I’m pretty sure it’s Kagan with two a’s.
Jeff, in United States v. Stevens, only Alito dissented. Maybe First Amendment cases have some common ground among the Justices, liberal and conservative, although the “corporate” issue muddied the waters considerably in Citizens United v. FEC.
A little bit further on, Kagan says:
Which begins to look like a doctrine of an invisible hand.
sdferr —
Read that last bit from Kagan again and place it in the context Fish placed Strauss’s First Amendment arguments. See what comes out of the sausage mill.
My issue with Kagan becoming a member of the Supreme Court is that she has no judicial experience. Her written opinions, as near as I can tell, portray her personal knowledge and values, not her potential as a judge.
I am not a lawyer, but I am keenly aware that professional experience and expertise in one particular area does not necessarily translate to experience and expertise in another area. Presenting an argument is not the same thing as judging the merits of multiple arguments. There are similarities, I agree. But they are only similarities.
Because of this, I view Kagan as Obama’s version of Sarah Palin when she was McCain’s running mate in the 2008 presidential campaign. Kagan has precisely the same issues: experience in a related field, but not enough to make her potentially acceptable to the population at large.
Well, the first read through left me with no [somebody] there there, so I’m not surprised that there warn’t no [anybody] there there on the second.
Yes, Will, thanks.
JeffS, would you not feel happier with an originalist constitutional scholar with no judicial experience on the bench, than with an activist, “living Constitution” pick with 10 years on the 9th Circ.?
I am of the general opinion that what SCOTUS needs is less lawyers among its ranks.
Silver Whistle, I’d prefer that presidential nominees at least pretend to be qualified for their jobs, and are not blatant political hacks nominated as Executive Branch stooges strictly for political reasons. This is not a new problem, e.g., Bush 43 appointed Brown as head of FEMA, and he had absolutely no experience in disaster management, and nearly none as an executive; God knows how he slid through the Senate, and he was a friggin’ disaster himself. But Obama has taken it to new heights; at least Sotomayor spent time as a judge.
But my BIGGER problem is that everyone here is accepting Kagan without addressing this particular issue. Granted, it’s a virtual certainy that she’s going to get the nod if she is seated in front of the Senate Judicial Committee, so this discussion is indeed relevant. But that doesn’t mean we can’t question her credentials.
Or the lack thereof.
Child porn? Intellectual property?
If you can tell me how having unlawful sex with a minor is a free speech issue, soa, I’d be obliged. Likewise intellectual property – if theft is involved, then theft is the issue, not freedom of speech.
Wouldn’t the better remedy for hate-speech (or harmful speech whatever that is) be more speech?
We see hate-speech pretty regularly around here (lookin at Nishi 8^) and usually respond with pretty effective remedies IMHO.
Which I read after I wrote this article. Hence, the “update.”
Goodbye, soa, pfar, RD, bdam.
It usually only takes one comment to recognize the passive-aggressive mendoucheous stylings of the multi-named meya/RD/pfar/bdam/soa
I’m listening to yesterday’s Hewitt: he’s pointing out that Kagan is eminently qualified but that he would vote against her confirmation.
She has two enormous paper trails, both under lock and key:
Memos and other stuff from when she was Dean at Harvard Law School.
Memos and other documents from her Clinton White House Counsel stint.
The mac truck is coming up the hill. I can’t bear to watch what happens next.
“She has two enormous paper trails, both under lock and key:”
If Obama refuses to release those documents the Reps would have sufficient justification to block hearings. The longer they delay the hearings the closer the election gets and the possibility increases that other damaging information will be revealed.
It’s not the having of the sex, like animal cruelty, that is banned. It’s the speech issue with distributing images, videos, etc.. of the activity.
That would be incorrect, and your arguments smell like they have been retrieved from somewhere unpleasant. From the decision in New York v. Ferber:
First. It is evident beyond the need for elaboration that a State’s interest in "safeguarding the physical and psychological [458 U.S. 747, 757] well-being of a minor" is "compelling." Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607 (1982). "A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens." Prince v. Massachusetts, 321 U.S. 158, 168 (1944). Accordingly, we have sustained legislation aimed at protecting the physical and emotional well-being of youth even when the laws have operated in the sensitive area of constitutionally protected rights. In Prince v. Massachusetts, supra, the Court held that a statute prohibiting use of a child to distribute literature on the street was valid notwithstanding the statute’s effect on a First Amendment activity. In Ginsberg v. New York, supra, we sustained a New York law protecting children from exposure to nonobscene literature. Most recently, we held that the Government’s interest in the "wellbeing of its youth" justified special treatment of indecent broadcasting received by adults as well as children. FCC v. Pacifica Foundation, 438 U.S. 726 (1978).
The prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance. The legislative findings accompanying passage of the New York laws reflect this concern:
"[T]here has been a proliferation of exploitation of children as subjects in sexual performances. The care of children is a sacred trust and should not be abused by those who seek to profit through a commercial network based upon the exploitation of children. The public policy of the state demands the protection of children from exploitation through sexual performances." 1977 N. Y. Laws, ch. 910, 1. 8 [458 U.S. 747, 758]
Link for above.
OT:
Well, on the plus side, it’s not like people send a lot of money to Washington during April.
“That would be incorrect, and your arguments smell like they have been retrieved from somewhere unpleasant”
Silver, those are all reasons why the speech is banned. That’s what I’m getting at — there are other speech restrictions besides defamation and direct incitement. Even if your child porn is produced somewhere legal, its still not legal to share it.
Au, meya, RD, bdam, soa. And on and on it goes.
Elite Media vs. Tim Tebow, Christian.
Runs for cover.
The antagonism of the media originates in the same place as the love of the fans — priorities. The Tampa Bay newspaper described Tebow’s view of the world as “faith, family, academics, football,” in that order. But what about the NFL staples upon which sports journalists fawn: sex, drugs, violence, and bling?
“Runs for cover.”
Negative ghostrider,
You have the point. I faced off with him two nights ago now it’s your turn. Baptism by fire baby, prepare for battle ;^)
I’ll check in and cover your six!
Volleys down range!
[…] Kagen and free speech […]
Kagan argued that governmental motive is “the most important” factor.
Where exactly does it say that in the Constitution? I think she’s making it up.
Like a “living” Constitution.