Elena Kagan and free speech

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By Dan Kennedy, assistant professor of journalism, Northeastern University

Does Solicitor General Elena Kagan have a problem with the First Amendment?

After President Obama announced Kagan as his choice to replacing retiring Supreme Court Justice John Paul Stevens, liberal and left-wing commentators zeroed in on her unflagging support for broad executive authority.

But there are reasons to be concerned about her commitment to freedom of expression as well.

In 2002, I singled out Harvard University for a Dishonorable Mention in the Phoenix Muzzle Awards for banning military recruiters from campus over its discriminatory policies against gay men and lesbians. Kagan did not become dean of Harvard Law School until 2003, but her support for that ban has quickly emerged as an issue in her confirmation.

(In 2004, for good measure, I gave then-secretary of defense Donald Rumsfeld a Muzzle for forcing the matter by threatening to cut off federal funds to colleges and universities that banned recruiters.)

More recently, Kagan appeared before the Supreme Court to defend a federal law prohibiting the depiction of animal cruelty. As solicitor general, she was merely doing her job. But University of Chicago law professor Geoffrey Stone, a former colleague of Kagan’s, recently told NPR’s “On the Media” that she went above and beyond the call of duty, proposing a case-by-case balancing test that could have posed a serious threat to freedom of speech. Stone said:

It really was a dangerous argument for the Solicitor General to make. It would have, if accepted, completely revolutionized a large part of First Amendment doctrine, losing the gains we’ve made throughout the 20th century…. Kagan would probably say she inherited this case; when she became solicitor general it was already in process. Nonetheless, I have to say that I was surprised that Elena didn’t take a red pen and scratch those parts of the brief out.

Kagan also argued vigorously against the notion that corporations should be allowed to spend freely on political speech, as stipulated in the recent Citizens United decision. And Obama cited that decision as one of his reasons for appointing her. I have mixed feelings about the ruling — like my Muzzle colleague Harvey Silverglate, I think it was directionally right, but I’m concerned about the consequences.

(By the way, Silverglate and Kyle Smeallie recently wrote an in-depth analysis for the Phoenix of Kagan’s record in anticipation of her appointment. Definitely a must-read.)

Nevertheless, Citizens United stands as yet another example of what appears to be Kagan’s approach to free speech: to cast it aside whenever it competes with her other goals and objectives.

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2 Responses to “Elena Kagan and free speech”

  1. pudge Says:

    “Citizens United stands as yet another example of what appears to be Kagan’s approach to free speech: to cast it aside whenever it competes with her other goals and objectives.”

    And this stands as the dividing line across which I will not go. Someone who favors rule of man over rule of law is unqualified to serve on most courts, let alone the Supreme Court.

    It always boggles my mind when people refer to conservative justices, following their view of what the law says, as “activist.” “Judicial activism” has always meant, to my mind, to ignore the law to reach a desired outcome. If that is what Kagan does — as it is what Breyer does — then she’s unfit to serve on the bench.

  2. Elena Kagan and free speech « New England First Amendment Center Says:

    […] to spend freely on political speech, as stipulated in the recent Citizens United decision. And Obama cited that decision as one of his reasons for appointing her. I have mixed feelings about the ruling — like my Muzzle […]

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