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KAGAN
2.0
The RED
A “Speech Diversity Nanny?”
By Jay B Gaskill, Attorney at Law
(The former
I am now persuaded,
subject only to a searching inquiry in which the nominee convincingly
testifies to the contrary, that E. Kagan cannot be safely confirmed as our next
Supreme Court Justice.
Based on the latest
available information about the nominee’s judicial philosophy, reasonable legal
minds (mine included) are persuaded that as a Supreme Court Justice, Ms. Kagan
can be expected to work tirelessly to secure the votes to implement a radical
change in the high court’s approach to free speech cases.
If Kagan is confirmed
and ever secures a majority position, her proposed change in First Amendment
law would be truly dangerous. The notion
of the government dipping into speech contents in the service of speech
“diversity” would have the practical effect of burying the First Amendment as a
robust firewall against government regulation of free speech.
This may well be
President Obama’s Bork moment.
THE NEWS
Washington Examiner
As Solicitor General, one’s
positions are determined by the client, in Kagan’s situation, the current
administration. But the chief counsel
for the government before the Supreme Court does get to select the arguments on
which the government relies.
This one is disturbing to all
of us who retain a strong commitment to freedom of speech and a concomitant
suspicion of the regulation of speech by government.
“As
an illustration why, consider this quote dug up by the First Amendment Center's
David L. Hudson, who found it in a government brief signed by Kagan in United
States v Stevens: “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.”
“The
case concerned a statute that made it criminally unlawful to depict animal
cruelty. The Court rejected Kagan's reasoning, but had the justices accepted
her assertion, it would have effectively repealed the First Amendment's
protection of speech and replaced it by granting government the authority to
decide what speech should be permitted.”
Was Solicitor General Kagan’s argument an anomaly, or
a red flag?
THE TELLTALE LAW REVIEW
After reading a revealing University of Chicago Law
Review article written by SCOTUS nominee Kagan, I am convinced it is the Red
Flag:
Finally,
Elena Kagan is on the record.
In
1996 she authored an article for the University of Chicago Law Review (http://www.jstor.org/pss/1600235 ),
“Private
Speech, Public Purpose: The Role of Governmental Motive in First Amendment
Doctrine.”
Although
Ms. Kagan owns the copyright, we may now presume that her acceptance of the SCOTUS nomination constitutes permission to study the
entire piece. I note that several of the
websites that have referenced this discovery are overwhelmed with traffic.
I’ve
just posted a copy of the PDF file of her entire article at this link: http://jaygaskill.com/KaganArticle.pdf
So
sue me.
THE KAGAN LAW REVIEW
Critical
Analysis
The
Executive Summary
Law review articles are typically
lengthy and hopelessly obscure for the lay reader. They tend to set out a critical analysis of a
line of cases representing a particular legal doctrine. But read carefully, such articles can reveal
the underlying philosophy of the writer.
Kagan’s article, a review of the
Supreme Court’s free speech cases, is no exception.
Ms. Kagan’s real views, not all
that well concealed, represent a radical break from a strong tradition of robust
First Amendment-grounded protection of free speech. If she ascends to the high court and ever
begins writing for the majority on free speech cases, there will be two large
free speech eras:
Before Kagan and after Kagan.
“Yet a content-neutral law, no less than a
content-based law, can lessen the ability to speak.” Kagan
The key obstacle to government abuse of
this most precious of all our freedoms is a simple, robust speech-protection
firewall: The government should be closely
restricted to time, place and manner regulation of all speech. Inquiry into the
contents of speech in order to
decide whether to regulate it (i.e., permit some speech and not other speech)
is off the table.
“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 "unskew," rather than skew,
public discourse.” Kagan
Ms. Kagan evidently wants contents-regulation
of speech back on the table. Her new
model: The government promotion of
“speech diversity” using contents-analysis as a tool. This is one door opened too far, the breach
in a time-honored firewall.
It is the nanny state empowered to
become the “speech nanny”, all in the name of “diversity”.
“In what has become one of the most
castigated passages in modern First Amendment case law, the Court pronounced in
Buckley v Valeo that "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.”
Kagan
Trust me when I say that only a few
radicals, among whom we can evidently now count Ms. Kagan, are willing to
“castigate” the idea that the First Amendment should forbid the government from
restricting the speech of some elements of our society in order to enhance the
relative voice of others.
On the contrary, inviting the
government into the role of “speech content referee” is profoundly dangerous.
JBG
KAGAN’S CHICAGO ARTICLE UNPACKED
Let’s take a moment to review
some other key excerpts from Kagan’s 1996 law review article, written at the
University of Chicago when her colleague, Barack Obama, was serving as a
Lecturer:
“I argue,
notwithstanding the Court's protestations in O'Brien, that First Amendment law,
as developed by the Supreme Court over the past several decades, has as its
primary, though unstated, object the discovery of improper governmental
motives. The doctrine comprises a series of tools to flush out illicit motives
and to invalidate actions infected with them. Or, to put the point another way,
the application of First Amendment law is best under-stood and most readily
explained as a kind of motive-hunting.”
P 414
Please note the context
here. We’re not talking about how one
goes about protecting government speech.
No, we are talking about how one goes about – as a Supreme Court justice
– goes about upholding government restrictions on otherwise free
speech. Now, under the Kagan analysis a
restriction of private speech for an “impermissible motive” would result in the
protection of speech...no problem there.
But what about upholding the
restriction of otherwise protected speech (reading the First Amendment as it
was actually drafted) because a Justice approves of the government
motive?
Does the prospect send chills up and down your
spine? It should.
Later in the article, Kagan
criticizes the time-honored notion in First Amendment law that the government
must resolutely refrain from going into contents analysis when deciding speech
issues because that is an open door to government content control which is
censorship.
In this next passage she
makes the argument that the government might do that very thing in the
interests of “balance”.
“But
distortion of public discourse might arise also (or instead) from the many
rules of property and other law that, without focusing or intending to focus on
any particular speech, determine who has access to expressive opportunities.l9
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 "unskew," rather than skew, public discourse.2”
So
we are invited by Ms. Kagan to seriously entertain the notion, here, that SCOTUS should regulate speech content (i.e., act in
the role of a benign censor) in order to “unscew”
some “imbalance”.
Those
of us who are looking with great concern at an ideologically driven Federal
Communications Commission with content-regulations designs on the broadcast
industry and ambitions to begin a camel’s-nose project to regulate internet
communications have reason to be alarmed at Ms. Kagan’s juridical approach to
speech regulation.
Then on page 430, Kagan
really begins to open the door.
“The key
principle with respect to motive is that the government may not limit speech on
grounds of mere disapproval, no matter whose or how widely shared. This principle
leaves untouched many reasons to restrict expression; in this Article, I call
these reasons ‘harm-based’ and contrast them to the "ideological” reasons
I have just discussed.”
Again
on page 433
...the concept
of impermissible motive I have described refers to the government in its
capacity as regulator of private expression. A second and, for my purposes,
more important question concerns the coherence of the distinction I have drawn
between motives based on harm and motives based on ideology-
At
page 435 she continues to conflate the harm-based and ideology based first
amendment theories. Have patience, here
– there is a method at work.
Hostility
against speech (or sympathy toward it) may lead the government or public to overassess (or underassess) the
harm speech causes. Likewise, hostility against speech (or sympathy toward it)
may lead the government or public to tolerate a lesser (or greater) degree of
the harm than it otherwise would. In either case, hostility (or sympathy) is
doing some of the work in the decision to impose a limit on speech. The desire
to suppress for its own sake-the tendency to count challenge or opposition
itself as harm-is impermissibly entering into the calculation.66
Continued
patience is required here, as Kagan’s argument is developed slowly, cloaked in
an ongoing commentary on the Supreme Court’s various approaches to its First
Amendment cases. See page 445
Yet a
content-neutral law, no less than a content-based law, can lessen the ability
to speak; indeed, a content-neutral law can do so more dramatically. To use my
earlier example, a general ban on billboards will reduce speech more than a ban
on bill-boards for political advertisements, which in turn will reduce speech
more than a ban on billboards disabling only Democrats. Yet under current law,
the Court will subject the first of these ordinances to the most relaxed form
of review and the last to the strictest.
Now
her focus sharpens and becomes ever more revealing. Page 446:
First, a
doctrinal structure based on the problem of distortion seemingly would subject
to heightened scrutiny whatever content-neutral rules fall much more heavily on
one idea than others. Suppose, for example, that only Democrats, and not
Republicans, use billboards to advertise; then, the skewing effect of a general
ban on billboards would match the skewing effect of a law specifically barring
Democrats from this forum. To put the point more generally, content-neutral
laws often have content-based effects-and sometimes these are quite dramatic. A
jurisprudence concerned with distortion should treat these cases with the
utmost seriousness. But current doctrine all but ignores the distorting effects
of content-neutral law.93
Page
447:
Were
courts primarily concerned with distortion they would at least modify the
strict distinction between content-based and least modify the strict
distinction between content-based and content-neutral laws to respond to the
host of cases in which they could directly evaluate skewing effects. Indeed, to
the extent this conclusion is wrong, it is so because of a fear of improper
motive.
We
are introduced to the notion of the government as a benign “Content Nanny” (my
characterization, of course, not Kagan’s) at page 449.
Indeed,
this model of the First Amendment might well command (not merely tolerate) the
use of content discrimination in some circumstances.
As
to Nanny administrated licensing, note then discussion on page 459.
As a
conceptual matter, content-based actions as well may improve as mutilate the
community's thinking process. So too, then, with the standardless
licensing schemes that facilitate such actions. If there is reason to think
that as a practical (rather than a conceptual) matter standardless
licensing more often will distort than improve public debate, that reason
relates to the fear of illicit motive on the part of licensing officials.23 The
real question, then, concerns governmental motive; it is whether a rule against
standardless licensing will identify and reduce the
incidence of improperly motivated administrative decisions.
Having worked up to it,
Kagan takes on First Amendment holy writ at page 464.
In what has
become one of the most castigated passages in modern First Amendment case law,
the Court pronounced in Buckley v Valeo that
"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... ."39
Then,
at page 466...
The
question that remains concerns the basis of this principle: what view of the
First Amendment accounts for the Court's refusal to allow, by means of
restrictions, the redistribution of expression?
On
page 467, I read, just under the surface, the Speech-Nanny-in-waiting, thinking
out loud to herself, “Please open the door. We’ll be nice. Promise!”
“The
question that remains concerns the basis of this principle: what view of the
First Amendment accounts for the Court's refusal to allow, by means of
restrictions, the redistribution of expression?”
Finally,
on page 478, we learn that it’s to be a “Speech Diversity Nanny”.
“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.151”
It fairly appears to this lawyer, that for SCOTUS nominee Kagan, the “question remains” only because
she hasn’t yet been confirmed.
Thereafter, she can be expected to work tirelessly to
secure the votes to implement what could later become known as the “Kagan
Doctrine”, a line of cases that ultimately would bury the First Amendment as a
robust firewall against government regulation of free speech.
Jay Gaskill, a California attorney, served as the Alameda County Public
Defender from 1989 through 1999. His
profile is available at www.jaygaskill.com/Profile.pdf
Read
Jay B Gaskill’s Lost Souls Coffee Shop, an allegory for the human condition. Google ‘jay b gaskill/lost
souls coffee shop’ .
And read
Jay Gaskill’s new thriller, The Stranded Ones. More on the Policy Think Site at http://www.jaygaskill.com/TourTheStrandedOnes.pdf .