Eugene Volokh on Elena Kagan's First Amendment Academic Articles: "I think they're excellent. I disagree with them in significant ways....But I like them a lot."

An interesting, thorough, and helpfully contextual examination of one noted First Amendment scholar by another. Zooming to the question du jour:

But how would Elena Kagan likely actually vote in First Amendment cases? It's hard to tell for sure. [...]

Still, here's my rough sense of the matter:

a. Kagan's First Amendment work suggests a general acceptance of current free speech law, and an attempt to better understand it and make it more internally consistent rather than to radically change it. [...]

b. On so-called "hate speech" and pornography, the two First Amendment topics on which Kagan has most explicitly written, I likewise see little interest in moving the law much. [...]

c. What about the matters on which Justices on the left wing of the Court have generally taken a relatively speech-restrictive view — campaign finance speech restrictions, and restrictions on religious speech in generally available government subsidy programs[?] [...]

My guess is that the likeliest bet would be to say that a Justice Kagan would be roughly where Justice Ginsburg is — generally pretty speech-protective, but probably with some exceptions in those areas where the liberal Justices on the Court have taken a more speech-restrictive view, chiefly expensive speech related to campaigns and religious speech in generally available government subsidies. Not perfect from my perspective, but not bad, and no worse than Justice Stevens, with whom Justice Ginsburg largely agreed on such matters.

I'm just cherry-picking the guesstimates here; by all means read the whole thing.

Volokh's Reason archive here. Reason.TV interview below:

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  • Jeffersonian||

    Make me President for a day, and I'd have Alex Kozinsky and Eugene Volokh on the Court.

  • ¢||

    Make me President for a day, and I'd have Alex Kozinsky and Eugene Volokh on the Court.

    Kozinsky would be fine, but Volokh would have to recuse himself from any case argued by lawyers. He can't find fault with any of them, and he pretends to be bewildered and helpless whenever he might.

  • Attorney||

    His tune would change after a few months of reading briefs and trying to get straight answers at oral argument.

  • x,y||

    Thank you, penny-man. It was getting lonely up here on the "Eugene Volokh may be a genius, but he's no libertarian" pole.

  • ||

    Elena Kagan's career to date has been notable for her careful attention to, well, doing and saying just the right things to move up the ladder.

    I fully expect her to "grow" in office, and suddenly discover in the Constitutional text many things that would be inconvenient for her now, like a right to gay marriage, hitherto invisible limitations on the First Amendment, and so forth.

  • Kolohe||

    a right to gay marriage,
    meh, wouldn't be death of the Republicv.

    hitherto invisible limitations on the First Amendment, and so forth.
    This on the other hand...

    (although I would guess she would tow the liberal lion [not a dead kennedy] that porn & bong hits 4 jesus and stuff is ok [it is] but stuff like citizen's united was wrongly decided [it was not]. So basically, the best that one could hope for at the current juncture)

  • Rich||

    It's hard to tell for sure. [...] Still, here's my rough sense of the matter: a. Kagan's First Amendment work suggests a general acceptance of current free speech law, and an attempt to better understand it

    Damn! Insubstantial much?

  • ||

    I didn't hear him apologize for slavery, he must be a racist.

  • The Libertarian Guy||

    "a general acceptance of current free speech law, and an attempt to better understand it"

    What's to understand? You either get it, or you don't.

  • Future Free Speech Law||

    TLG, you will get it.

    Understand?

  • ||

    Alex Kozinsky throwing gang signs! How cool is that? I had an opportunity to ask him his opinion of the then-pending "dog fight tapes" case. He thought that if the government can ban cruelty to animals, it can ban films depicting cruelty to animals, but that was off the top of his head, and he seemed to be thinking that the law was narrowly drawn to outlaw only crush movies.

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