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: