Elena Kagan, Free Speech Foe

I've been deferring writing about Elena Kagan, the new nominee to the Supreme Court, until I had time to do some reading. I've done enough.

Given that her legal resume is so thin – zero experience as a judge, barely any as a litigator, but decades as an academic, administrator, and political functionary (during which she's been very cagey about stating her views) — I didn't expect to find any clear Sotomayer moment. Surprisingly, that moment has arrived.

From a brief filed on behalf of the government in, of all things, a case involving depiction of animal cruelty, Kagan wrote:

“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.”

Here is the full text of the First Amendment of the Constitution of the United States:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

There is nothing ambiguous about that language. It doesn't provide any wiggle room for dividing speech into two classes, one of which is off-limits from government censorship because of social utility, the other vulnerable to quashing for lacking value in the eyes of Federal censors.

The Solicitor General's stance in that case didn't even turn on such not-really-very-complex issues as whether a corporation's speech is suppressible in a way that individuals' is not, as in Citizens United*. (A clever Progressive red herring, since corporations are owned ultimately by individuals, but never mind that now.) No, it was just plain advocacy of censorship of speech lacking the golden passkey to the public's ear: social value.

[Note: That the videos the brief describes are revolting, that the animal cruelty depicted might well be justifiably suppressed on other grounds, is irrelevant here. (PDF warning)]

Sadly, it's almost a given that Elena Kagan will be given a pass by the Senate. If Sotomayer could be approved then, paraphrasing a line from The Lion In Winter, "there's hope for every ape in Africa." But it will be yet another travesty inflicted by the current Administration, and among the worst. As I said during the campaign, policies can be undone, legislation diluted. There's no undoing a Supreme Court pick and little likelihood of undoing its effects for two generations or more.

Of course, the Republicans really couldn't stop it if they wanted to, and most show no signs of caring very much. (There are notable exceptions, such as Sen. Inhofe.) But whether anything can be done to stop it, I'm with Jeffrey Lord who argues she should be grilled anyway. At least it would have value in bringing the issue of the proper role of government into the center ring.

Unfortunately, that's about the best we can hope for this time around.

And, oh by the way, before I forget. About that money quote that should shock the conscience of any right thinking person... That's pretty much been the standard Supreme Court view for a century. It's something of a wonder that Kagan lost the argument.

*[Update: (5/15/2010) Justice Kennedy, writing for the majority in the Citizens United case, said:

"When government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves." (Hat Tip Terry Eastland, Weekly Standard.)

This is what Kagan, and Obama in his revolting STFU Address, disagree with.]