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May 31, 2010

BLOCKING KAGAN

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Copyright © 2005, 2006, 2007, 2008, 2009 and 2010 by Jay B. Gaskill
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PRINT VERSION: http://jaygaskill.com/BlockingKagan.htm

 

WHY BLOCK KAGAN’S NOMINATION?

 

The Obama administration is not happy with the current robust protections afforded free speech in this country.  And SCOTUS nominee Elena Kagan is the president’s stealth ally in this respect.  Yes, if confirmed, Kagan will be just one vote of nine.  But – and this is a complement to her skills – she will be a dangerous enemy of free speech. 

 

Why? 

 

Because Ms. Kagan is personable, persistent and very intelligent.  She would be just the sort of Associate Justice who could actually persuade four malleable liberals on the High Court to bend one more freedom-protecting boundary in the service of the “greater good.”  Of course, the old school liberals, like Justice William O Douglas, a free speech hawk of the first order, would be immune the blandishments of Kagan.   But Justice Douglas was replaced by justice Stephens.   

 

There is a pattern here.  As the Weekly Standard author Terry Eastland put it --

 

“But surely there are Republicans on the Senate Judiciary Committee prepared to challenge the president by standing up for a fundamental liberty. Recall that Citizens United, a conservative nonprofit, wanted to distribute a political documentary about then-Senator Hillary Clinton, a candidate in the Democratic primaries. The Court might have ruled narrowly for Citizens United but for the concession by the government’s lawyer that campaign finance law as it had evolved through McCain-Feingold could be constitutionally enforced to ban a book with the same point of view as the video.” 

 

[My emphasis.  The government’s lawyer was Kagan and the concession was made out of honesty: It was her own view.]

 

http://www.theweeklystandard.com/articles/why-obama-chose-kagan

 

Translation:  Kagan and Obama are prepared to restrict political speech, print, video, electronic speech, all in the name of “fairness” and diversity”. 

 

I just sent an explanation of Kagan’s dangerous Free Speech theory to a friend, who was trying to grasp why she, in particular, was in any way worse than any other liberal nominee.   He was confused by Kagan’s “diversity” rationale, and evidently thought she must have been using it in the more familiar workplace-hiring sense. 

 

Not.  

 

This is a far more dangerous concept, one that strikes at the very heart of the traditional free speech firewall that has served to protect unpopular and disapproved speech for the last turbulent century.

 

The government control of the internet and the covert censorship of broadcast content will be fully protected if Ms. Kagan’s “speech diversity” theory ever gains traction.  

 

I have reluctantly, but decisively concluded that Ms. Kagan’s nomination perfectly correlates with a general stealth assault on the First Amendment free speech firewall by members of this administration.

 

So this is not about the so-called “diversity” cases at all.  

 

Diversity in this sense is the “good cause” of a beneficent government ever watchful of our diet and the quality of our political discourse. 

 

It is about giving the power of censorship to the legislative branch based on a claim, made by the executive or legislative branch, that justifies censoring for a “good cause”, to wit: achieving “speech diversity” by suppressing one speech to make room for other speech.  It is “soft” censorship in order to correct an imbalance of speech (in this instance as perceived through the lens of the left).   Code: Not enough “diversity” being heard means too much right wing radio and internet chat.  Warning to liberals:  It works the other way around, too as the late great Justice William O Douglas would attest.

 

I now believe that this low key, but potentially catastrophic assault on free speech is close to Mr. Obama’s heart.  In a May 24 Weekly Standard piece, “The Thinness of his Skin”, in the Scrapbook section, the author analyzed the President’s recent Virginia commencement address: 

 

“But for startling insight into the mind of our 44th president, we cannot do better than his recent commencement address at Hampton University in Virginia. Most graduation speeches are predictably anodyne and tend to rely on well-worn generalities. Obama, by contrast, was refreshingly specific at Hampton: He does not like the newfangled means by which many of today’s college graduates—or anyone, for that matter—obtain information.

 

“You’re coming of age in a 24/7 media environment that bombards us with all kinds of content and exposes us to all kinds of arguments, some of which don’t rank all that high on the truth meter. With iPods and iPads and Xboxes and PlayStations—none of which I know how to work—information becomes a distraction, a diversion, a form of entertainment, rather than a tool of empowerment, rather than the means of emancipation.

 

‘“Some of the craziest claims can quickly gain traction,” he added, referring to talk radio and blogs.

 

“These well-chosen words tell us a lot about Barack Obama, and none of it good. To begin with, it is abundantly clear that Obama may well be the president with the thinnest skin since James Knox Polk, who at least had the decency to rail at his critics in the privacy of his diary. Obama is not only indignant about criticism, hostile comment, and ‘the craziest claims’ about himself and his policies: He is furious that citizens have access to different viewpoints without regulatory control. Public discourse in a free society is not a virtue in itself, according to the president; it should be a ‘tool of empowerment’ or ‘means of emancipation,’ not ‘a form of entertainment.”’

The remedy?  If Justice Kagan ever commands four more votes on the High Court, some of the voices that irritate our new president will be silenced or curtailed based on the contents of their discourse.

 

I’ve already done an analysis of Kagan’s University of Chicago Law Review that she wrote when her colleague Barack Obama was also lecturing there. 

 

Kagan’s nomination is about whether and when, in the name of the public good, the government - of whatever size - can legitimately censor public or private communications based on an assessment of the specific contents of a particular communication. 

 

Much is said about whether a prospective justice can be subject to a “litmus test”.  Yes.  Yes.  Yes.  The robust protection of Free speech is the litmus test.  And Kagan’s stealth nomination is the moment of truth for the friends of free speech who now sit in the US Senate.

 

The original and current constitutional rule, very bright line as these things go, is that - from a content-neutral point of view - the government (meaning the legislative branch) may only “regulate” (i.e. prohibit) speech based on a “time, place and manner” analysis.  In one case the high court noted that there may be an inappropriate time and place to shout a false warning - “FIRE!”, especially in a crowded theater.  It also crafted the so called “fighting words” exception (manner and place), and a few other very tight exceptions.  

 

Ms. Kagan is promoting a truly radical departure, one in which the legislative branch would be permitted to act more like a newspaper editor with the power to control “balance"”, by actually curtailing disfavored speech because there was too much of that POV, compared to this POV....  This is a metaphorical editor who could dictate contents on a radio station, a magazine, a paper or limit time-on-air, the distribution and number of copies, much like a politically aggressive FCC Chairperson could do for broadcast outlets.

 

All of this content censorship would be accomplished (in Kagan's theory) with the “best” of motives.  But the leading Supreme Court free speech cases have been founded on the view that governments cannot be trusted to evaluate speech content, except in the most extreme cases (pornography for children), because, inevitably, the in-power group will be biased against the ideas and ideologies of the out-of-power groups.  

 

The authors of the Bill of Rights were keenly aware of Lord Acton’s caution that “power corrupts.”  This core wisdom informs our “checks and balances” structure of government, the separation of powers, the limitation of powers and the bright-line clear language in the Bill of Rights, such as  the government “shall make no law” abridging the freedom of speech.  


Elena Kagan differs so sharply on this one issue from our whole constitutional history to date that she fully warrants the designation radical.  

 

Any other candidate whose name has come up so far would be far better on this issue.  

Free speech is one of those bedrock principles.  The most liberal justices in US history remained principled defenders of free speech and against any content censorship, no matter how “trustworthy” and benign' the alleged government purpose.  Ms. Kagan’s “speech diversity” theory is truly a Red flag, one that transcends ideology.

 

But most of Kagan's true views have been well hidden.  We are very lucky that this piece (in the University of Chicago Law Review[1]) got the attention it did.  The remaining question is whether more people will pay attention.  

 

I have apparently overestimated the “I give a s***” factor for something so essential to the preservation of our core liberties.  

 

Thirty years ago, Kagan's article (if not satisfactorily explained-away by the nominee) would have been an immediate DQ.

 

Times change but bedrock principles do not.

 

Jay B Gaskill

Attorney at Law

 

For more, go to -- http://jaygaskill.com/KaganFreeSpeechLitmusTest.htm

 

 

SHAMELESS SELF PROMOTION SECTION

 

Read Jay B Gaskill’s Lost Souls Coffee Shop, an allegory for the human condition...and The Stranded Ones, a near-future novel about a potential Armageddon-scale “immigration” problem.  Hint:  They’re not from around here. 

 

Both books are sold as e-books by Amazon, Barnes and Noble, ireadiwrite Publishing and 10 other on-line book retailers.  Just GoogleJay B Gaskill” and the book’s title.  

 

 



[1] A copy in pfd format is available on my website – http://www.jaygaskill.com/KaganArticle.pdf

May 24, 2010

DEMISE OF THE FREE SPEECH FIREWALL UNDER ‘JUSTICE’ KAGAN

As Published On
→ The Out-Lawyer’s Blog: http://www.jaygaskill.com/blog1
And
The Policy Think Site: http://www.jaygaskill.com
All contents, unless otherwise indicated are
Copyright © 2005, 2006, 2007, 2008, 2009 and 2010 by Jay B. Gaskill
Permission to print all or part of this article (except for personal use) is needed. [Permission for use in group discussions is almost always routinely given.]
Please contact Jay B. Gaskill, attorney at law, via e mail at law@jaygaskill.com
PERMISSION TO FORWARD LINKS TO THIS BLOG OR INDIVIDUAL ARTICLES IS HEREBY GIVEN

 

Print Version: http://jaygaskill.com/KaganFreeSpeechLitmusTest.htm

 

DEMISE OF THE FREE SPEECH FIREWALL UNDER ‘JUSTICE’ KAGAN: THE LITMUS TEST

Analysis

By

Jay B Gaskill

Attorney at Law

The former Alameda County (CA) Public Defender

 

Free speech is never safe.  No society can be free without free speech, as that condition is commonly understood in the USA – consisting of a free press to be sure, but also of a wideband freedom from all political censorship that protects all forms of communication through all forms of media -- oral, audio-video, electronic, film or live appearance.

 

And no free society can sustain itself without robust legal protections for free speech meaning, at a minimum, that contents-censorship is strictly forbidden, especially by the political elites and their apparatchiks.

 

The single most reliable, consistent and powerful friend of free speech in the 20th century USA was Supreme Court Justice William O Douglas, appointed to the high court by FDR in 1939, serving until 1974. 

 

Douglas wrote: “The Constitution is not neutral. It was designed to take the government off the backs of the people.” During the tenure of Justice Douglas and under his leadership SCOTUS erected a constitutional firewall against the political regulation of speech, starting with the bright line injunction of the First Amendment of the constitution, “Congress shall make no law ... abridging the freedom of speech, or of the press”.  

 

As Douglas put it in a concurring opinion:

 

“I do not believe any form of censorship—no matter how speedy or prolonged it may be—is permissible. As I see it, a pictorial presentation occupies as preferred a position as any other form of expression. If censors are banned from the publishing business, from the pulpit, from the public platform—as they are—they should be banned from the theatre.” 380 US 51, Freedman v. State of Maryland

 

The Douglas vacancy was filled by Justice Stephens, whose retirement has given Mr. Obama the opportunity to nominate Elena Kagan.  Regrettably, Ms Kagan’s views on the first Amendment’s protection of speech are a far cry from those of Justice Douglas.

 

I know something of the constitution and have a particular interest in the high court’s free speech cases. 

 

So much deference is given to the ban against contents censorship that the “prior restraint” of a communication is almost never lawful, requiring a convincing showing of a clear and present danger of serious imminent harm, and even then the restraint is only temporary, until the harm is past.   The other exceptions that allow some censorship (child pornography) or subsequent punishment (fraud or incitement to riot) are so tightly drawn that the resulting jurisprudential firewall remains secure.

 

But Elena Kagan is poised to change all that.

 

The 21st century’s information avalanche presents special challenges to free communication, among them the growing entanglement of the government with all our e-communications access pipelines, retailers and providers, through a process of creeping utility-status via regulation.   Imagine just how secure free speech would remain if the government was deep into regulation of all printing presses and distribution channels. 

The three Murphy’s Laws of government behavior operate with particular force here:

 

  1. Once allowed in any area of human activity, governments always test and eventually penetrate the protective boundaries that were originally set up to contain it.
  2. The more “noble” the governmental purpose driving this invasion process, the quicker and deeper it progresses.
  3. The results are always a perversion of the announced “beneficent” purposes, and never fail to backfire.  Unfortunately, freedom lost is hard to regain.

 

We’ve seen this play out in the FCC’s “protective role” for all over-the-air communications.  Have we already forgotten the threat portended by the so called “fairness doctrine”?  In the presumed interests of mandating “balanced” programming, the application of that brainchild-of-the left to broadcast radio would kill conservative talk-show programming, leaving the present left-leaning dominance of liberal print and network programming without any significant countervailing voice.  This malign outcome should shock even the old fashioned liberals who still believe in free speech, the right of dissent and the commitment to duty to protect the speech of those with whom we disagree.

 

My earliest reaction to the Kagan nomination was to note how unusual it was that such an ambitious and politically savvy lawyer could have left such a thin paper trial.  I concluded that she did so out of political calculation because her more extreme form of liberalism was out of step with that of the electorate.  I noted that her teaching career at the University of Chicago overlapped with that of Mr. Obama.  I described her views as deeply cloaked.

 

Where the free speech issue is concerned, the Kagan cloak has been breached.

 

Late to the party, some conservatives and principled liberals of the William O Douglas stripe are just now waking up to the fact that Ms Kagan is a potential threat to free speech, based on a more careful analysis of the arguments she has made on behalf of the Obama Administration as Solicitor General.

 

http://thehill.com/blogs/blog-briefing-room/news/98067-new-gop-argument-against-kagan-she-could-ban-bookshttp://thehill.com/blogs/blog-briefing-room/news/98067-new-gop-argument-against-kagan-she-could-ban-books

 

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. 

 

The following news account and analysis should be disturbing to all of us who retain a strong commitment to freedom of speech and a concomitant suspicion of any 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.”


LINK:

http://www.washingtonexaminer.com/opinion/blogs/beltway-confidential/Kagan-Speech-is-free-if-government-decides-it-has--93309159.html

LINK:

http://www.washingtonexaminer.com/opinion/blogs/beltway-confidential/Kagan-Speech-is-free-if-government-decides-it-has--93309159.html#ixzz0njQUFqmE

 

 

A Smoking Law Review

 

But there is something on record more definitive.  In 1996, Professor Kagan wrote a highly revealing article for University of Chicago Law Review (http://www.jstor.org/pss/1600235 ), “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine.” 

 

In that article, Kagan actually proposes that a form of contents censorship would be justified and upheld by her view of the constitution.   It’s all about the government’s supposedly benign purpose.

 

“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. 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’s term skew means some notion of balance as it might appear to her or some other government official at the time.   A debate or discussion might be “distorted” for example because there is too much “unrealistic” talk about free markets and too little talk about social justice.

 

“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.” [my emphasis]

 

Kagan’s approval of contents censorship is unambiguously implied here; her meaning is conveyed without actually using that “hot” word, much like we talk about putting a euthanized kitten “to sleep”.  She is actually saying here that content-based regulation of speech, designed to restore “balance” could be upheld because of the “good” governmental motive.  As she argues, a policy of ignoring contents (i.e., not using the contents of what someone is saying to punish or censor speech) is on a equal footing with taking contents into account (i.e., using contents to promote some speech while suppressing other speech), because the whole game is about the government’s happy purpose in doing so. 

 

William O Douglas is rolling over in his grave.

 

Caught up in the force of her own argument, Kagan allows her careful rhetorical cloak to part, revealing the outline of her proposed attack on the free speech firewall we have enjoyed for the last 75 years. 

 

See page 445

 

“...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.”

 

Only a liberal of an entirely new type, one supporting a radical departure from traditional free speech jurisprudence, could possibly have composed those lines.  By necessary implication Kagan was suggesting that a governmental body, properly motivated, could “adjust” of balance billboard contents, even in political advocacy cases. 

 

The founders of this country knew better than to trust elected officials from any single branch of government or any bureaucrat to make coercive judgments on a “we know what’s best for you” basis, or to trust any one or combination of two branches to do so. 

 

Each branch of government was designed to act as a check and balance against the other. 

 

But Kagan’s speech regulation schema would have local authorities free to censor content in the service of achieving a balanced debate only subject to review by the courts, who also would be empowered to do the same thing.  The problem presented is simple:  Immediate censorship can alter the very power structure in ways that cannot easily be undone.  Only the prophylaxis of “no prior restraint” can prevent that harm.  Politicians cannot be trusted to act altruistically when their own political interests are at stake.  This wise suspicion was the basis of the “no content censorship” firewall. 

 

Thanks to Justice Douglas and the other liberal first amendment lions of the high court, that firewall is still in place.  Only the US Senate remains as a bulwark against the first stages of its dismantlement. 

 

If there is one litmus test for service on the US Supreme Court, it is the free speech firewall.  Subject to Kagan’s under oath, credible repudiation of her University of Chicago free speech.

 

JBG

 

The full text of Kagan’s law review article is posted at -- www.jaygaskill.com/KaganChicagoSpeechArticle

 

 

 Please forward this article to your friends, correspondents and to your US Senator

 

 

 

 

 

May 12, 2010

KAGAN NOMINATION - RED FLAG

As Published On
→ The Out-Lawyer’s Blog: http://www.jaygaskill.com/blog1
And
The Policy Think Site: http://www.jaygaskill.com
All contents, unless otherwise indicated are
Copyright © 2005, 2006, 2007, 2008, 2009 and 2010 by Jay B. Gaskill

Permission to print all or part of this article (except for personal use) is needed. [Permission for use in group discussions is almost always routinely given.]
Please contact Jay B. Gaskill, attorney at law, via e mail at law@jaygaskill.com
PERMISSION TO FORWARD LINKS TO THIS BLOG OR INDIVIDUAL ARTICLES IS HEREBY GIVEN

This article is also posted on the PTS - http://jaygaskill.com/KaganRedFlag.htm
 

KAGAN 2.0
The RED FLAG 
A “Speech Diversity Nanny?”

 

By Jay B Gaskill, Attorney at Law

(The former Alameda County, Ca, Public Defender)

 

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.”


LINK:

http://www.washingtonexaminer.com/opinion/blogs/beltway-confidential/Kagan-Speech-is-free-if-government-decides-it-has--93309159.html

LINK:

http://www.washingtonexaminer.com/opinion/blogs/beltway-confidential/Kagan-Speech-is-free-if-government-decides-it-has--93309159.html#ixzz0njQUFqmE

 

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 .

 

 

 

 

 

 

 

May 11, 2010

KAGAN

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LINK: http://jaygaskill.com/KAGAN.htm

KAGAN

 

She is an archetypically sharp-liberal, but funny and endearing – if you enjoy the type (as I usually have, having worked with several Kaganesque woman lawyers over the decades).   And Ms. Kagan is deeply, deeply cloaked. 

 

You have to work at it to smoke a memorable path from New York’s Upper West Side through the Ivy League, the Clinton Administration to a major Deanship without leaving a paper trail.  So we have the New York Times parsing a high school paper (revealing unsurprisingly the young Kagan was rooting for American socialism). 

 

I used the verb “smoked” earlier because burning ambition was the single common thread in Kagan’s career and because (yes, this part is endearing) she was (and may still be) an occasional cigar smoker.

 

If you’ve spent any significant part of your professional life in a major urban setting suffused with liberals of all stripes, her brilliant profile in the New York Times today tells you almost all you need to know.

 

A Pragmatic New Yorker on a Careful Path to Washington http://www.nytimes.com/2010/05/11/us/politics/11kagan.html?ref=todayspaper ]

 

Why was Ms. Kagan so cautious about writing?  She was ambitious, highly political and she trained to the test.

 

David Brooks, ever cautious and moderate in tone, expressed it thus:

 

There’s about to be a backlash against the Ivy League lock on the court. I have to confess my first impression of Kagan is a lot like my first impression of many Organization Kids. She seems to be smart, impressive and honest — and in her willingness to suppress so much of her mind for the sake of her career, kind of disturbing.

http://www.nytimes.com/2010/05/11/opinion/11brooks.html?ref=opinion

 

 

The remaining issue that conservatives will explore is Dean Kagan’s stance on the Clinton’s Administration’s “Don’t Ask, Don’t Tell” policy in the US military.  I am socially tolerant, especially about matters of sexual orientation, but I am an arch-conservative when it comes to national security issues.  The policy of “Don’t Ask” was arrived at in a spirit of pragmatic necessity, given the real world problems that “gay integration” presents in a mostly male, macho organization.  Had the issue been floated in the months after 911, it surely would have been tabled.  Barring recruiters from campus (as so many deans did) was and is one of those gestures that betrays a certain cluelessness about the internal workings of military units and a blatant disregard of  the importance of military recruitment n the context of a fully volunteer defense force in a time of ongoing peril. 

 

So don’t tell me that Ms. Kagan was a broadband pragmatist.  The record there is embarrassingly clear.  She was pragmatic about one thing, only:  advancing her career.

 

Whether she will be confirmed is a settled issue.  She is obviously bright and meets any reasonable set of MQ’s for the job.  Her other, deeply cloaked, positions might well spark a real nomination battle, but the current nomination tradition gives her perfect cover:  you can ask but she won’t tell.

 

JBG

 

 

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 .

 

 

 


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