Censorship

Where Kagan Is Better Than Stevens on Free Speech

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Eugene Volokh notes that Elena Kagan does express one clear opinion about a Supreme Court decision in the 105 pages of her 1996 University of Chicago Law Review article (PDF) on First Amendment doctrine (which I discuss here and here). She says the Court "made the correct decision" in United States v. Eichman, the 1990  ruling that overturned a federal ban on flag desecration. "I believe this is the only occurrence of the phrase 'correct decision' in her articles," Volokh writes.

The law at issue in Eichman was the congressional response to Texas v. Johnson, the 1989 decision in which the Court overturned a state ban on flag burning. The Texas law made it a crime to "deface, damage, or otherwise physically mistreat" a flag "in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action." In an attempt to write a law that would survive judicial review, Congress phrased the federal ban in broader terms, without referring to the message communicated by flag descration. The federal law applied to anyone who "knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon" a flag. Kagan uses the case to illustrate her point that a seemingly neutral statute that makes no reference to speech can still violate the First Amendment if a motive to suppress certain kinds of expression is clear. "All of the rational interests underlying the law relate to the restriction of a message," she writes. "In such a case, an indicator of illegitimate motive (content-based justification) undermines the indicator of legitimate motive (general application)."

Notably, Kagan's endorsement of Eichman, which implicitly applies to Johnson as well, puts her at odds with the justice she would replace, John Paul Stevens, who dissented from both decisions. So on this free speech issue, she looks better than Stevens. It seems likely, however, that she takes a similar view of limits on the political speech of corporations (President Obama certainly seems to think so). And her 1993 article (PDF) offering advice to feminist opponents of pornography suggests she would be more inclined to uphold restrictions on material with sexual themes than Stevens was toward the end of his career. The same article also suggests  she might be willing to uphold "hate speech" restrictions framed as general bans on harassment or "fighting words."

Addendum: As Tulpa notes in the comments, the federal ban on flag desecration included an exception for disposal of a "worn or soiled" flag, which suggests a concern about the expressive function of the prohibited acts. For that matter, the very notion of "desecration" (the term by which the offense is described in the statute) indicates the law was aimed at squelching a particular kind of speech.

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  1. Er, doesn’t the Flag Code specify burning as the proper disposal method of a flag that is damaged or worn out?

    If they put an exception in the federal version of the desecration law for “proper disposal” or something like that then the statute is not content-neutral even on its face.

    1. I was taught as a kid in the Cub Scouts (yes, I was in the Cub Scouts for a while) to either bury or…burn an old, worn out flag, and that this was the proper method of disposal. These idiotic flag desecration laws always amused me in this regard.

      1. I refuse to believe that you were ever CLEAN and REVERENT.

        1. And “Morally Straight”.

          1. Suspicious of the Thrifty as well.

            1. Oh, I was a terrible scout. Hated it. I refused to help old ladies across the street, even. And merit badges? You want me to do homework? Fuck you; I don’t even do homework for school, I’m certainly not going to do it for some little patch.

              My parents realized soon enough that it was not for me, and sent me sailing in Maine instead.

              1. I was in the Cub Scouts for a while

                Man, I read that sentence completely wrong.

              2. It’s OK to talk to us about being molested by your Pack Leader. You don’t have to make up silly reasons why you hated Cub Scouts and all authority figures after what you went through.

              3. Merit badges? The only merit badge I got was The Treasure of the Sierra Madre merit badge.

                1. That stinkin’ badge?

  2. Her excuse for letting the 1st apply to flag desecration would fit any outlawed pornography, or almost any “hate” or “fighting” speech, if she wanted it to.

    That’s not better. That’s Stevens with a hangup about his pussy.

  3. Kagan uses the case to illustrate her point that a seemingly neutral statute that makes no reference to speech can still violate the First Amendment if a motive to suppress certain kinds of expression is clear.

    So, deference to the legislature goes right out the window when it comes to laws she disagrees with.

    It seems likely, however, that she takes a similar view of limits on the political speech of corporations (President Obama certainly seems to think so).

    Her deference to the legislature will undoubtedly resurface on this issue. Gee, I wonder why?

  4. Where does she stand on porn and violent movies? The most important first amendment issues.

    Will she have my roommate’s appalling world and folk music collection confiscated and destroyed?

    1. “Will she have my roommate’s appalling world and folk music collection confiscated and destroyed?”

      One could hope for some sensible exceptions to ‘freedom of expression’.

  5. Actually, I have always wondered why making a pair of shorts* or t-shirt with a flag design on it is any less ‘desecration’ than burning it in protest.

    (*And what do you do to a toddler so attired who craps his pants?)

    1. Don’t forget those 4th of July napkins I wipe my bbq stained mouth on.

    2. Depends who’s wearing them. In this case, I think you’re actually honoring the flag. Pity dah foo!

      1. “Depends”

        I forgot about seniors.

    3. You do him for treason.

  6. I wonder how she feels about laws banning desecration of a cross (as by burning.)

  7. The thing that annoys me the most about the “flag desecration” prevention people is that they’re the same people who are likely to wear US flags on their clothing or napkins or what have you. Which is, according to the flag code, the same as an actual flag, which means that you need to dispose of an old T-shirt with a flag on it in a respectful manner (typically by burning or burying, but neither method is required). Burning the flag as a protest is treating it as a powerful symbol, in a manner that is more respectful in a meaningful way than wearing it as an item of clothing or using it to wipe your mouth on Independence Day.

    I’m a bit ambivalent, personally, about the flag as a symbol; on a personal level, it means a lot, but objectively, it’s a colored bit of cloth, and the ideals that it symbolizes ? freedom of speech, for one thing ? are far more important than the symbol itself. It’s one reason I have decided to never say the pledge of allegiance again. First, a free citizen of a republic should never be swearing allegiance ? it has a specific meaning in addition to its common meaning, a meaning that is inimical to a free society. Second, even if swearing allegiance to the Republic were acceptable for the average citizen, swearing allegiance to a piece of cloth is a disturbing idea, even as a symbol of that republic. Swearing allegiance to the Queen of England, taken as a symbol of the UK, makes some sense; swearing allegiance to the flag is wrong.

    1. You’re not pledging allegiance to the particular piece of cloth that you’re facing. If you were, it would be pretty meaningless since that particular piece of cloth won’t be around when your allegiance is required.

      Did all the people who pledged allegiance to the 48-star flag suddenly get released from the pledge once the design changed?

      1. Then why do people say “I pledge allegiance to the flag” and not “I pledge allegiance to the USA”? Are they talking about the Platonic form of the Flag? Or is there one special flag in a bunker somewhere which is the real one everyone pledges to?

        1. I think the person who wrote the pledge of allegiance didn’t really think through the ramifications of the precise wording used.

      2. Okay, so it’s the “idea” of the flag I’m pledging allegiance to, rather than a specific bit of cloth. It’s still wrong in principle. Pledging allegiance to The Queen makes sense; pledging allegiance to The Republic, which represents the body of The People, makes sense. Pledging allegiance to The Flag, which represents The Republic, which represents The People, is just silly. It’s jingoism at its worst.

        All of which bothers me, but it sidesteps the real issue, which is that things like the pledge of allegiance subordinate the individual to the collective. I, as a citizen of a republic, don’t owe allegiance to the republic. If anything, the republic owes allegiance to me, and all the other citizens of the republic. It makes some sense for the officers of that republic to swear allegiance; they are supposed to subordinate themselves to the collective body of the republic, because their function is to serve the public rather than themselves.

        Yes, it’s somewhat of an abstract concept, and certainly one that has little relevance in everyday life. But I think it’s more important than we realize, most of the time. Children learn from an early age that they are supposed to consider the nation more important than themselves. Not that it can be a good thing, when appropriate, to do so, but that it is the normal state of affairs. It is natural for this to happen ? nationalism and tribalism are the natural state of humanity ? but it must be fought. It is disastrous to the polity of a republic for its citizens to become so accustomed, and that is exactly what has been happening in the United States ever since its founding.

    2. I am pretty sure that according to the flag code, putting the flag on clothing or napkins is in fact flag desecration in and of itself. It is fun to point that out to the sort of people who like to adorn themselves with all sorts of flag themed paraphernalia.

    3. Swearing allegiance to the Queen of England, taken as a symbol of the UK, makes some sense; swearing allegiance to the flag is wrong.

      How do you stand on the issue of Queen burning as opposed to Flag burning?

      1. I’m opposed to it; but Charles might be a good candidate for it.

        1. What about Elton?

  8. So she is for free speech that is basically totally pointless and makes the rabble hate the constitution.

    But if its explicitly political speech that might actually have some real affect on the world, then she doesn’t care.

  9. OK, so she’s in favor of allowing people to show contempt for nationalism. All our other free speech rights may be on the chopping block with her, and she’s almost certainly gonna refuse to disclose anything about those other views.

    Anyone who says Democrats are staunch supporters of free speech is gonna have to explain the likely 59-0 vote among Democratic senators for her confirmation.

  10. Well, shit! Let’s get her confirmed as quickly as possible! I’m all kinds of excited now!

  11. I’m a bit ambivalent, personally, about the flag as a symbol; on a personal level, it means a lot, but objectively, it’s a colored bit of cloth, and the ideals that it symbolizes ? freedom of speech, for one thing

    A flag symbolizes whatever an individual thinks it symbolizes to them.

    What I have observed is that many people who love the U.S. flag thinks it means a blind devotional nationalism. Not so fond of that, but I’m all for letting people respect or disrespect a colored piece of cloth if that floats their boat.

    1. espect or disrespect a colored piece of cloth if that floats their boat.

      Pieces of cloth, either colored or uncolored, are more typically used as part of a boat propulsion system than as part of a boat flotation system. Happy to clarify that for you.

  12. Pwned. I wrote a law review article praising both the Eichman and Johnson decisions.

    Here’s the cite: 3 Appalachian J.L. 101 (2004). It’s also been cited in a Eastern District of PA memorandum opinion: http://www.paed.uscourts.gov/d…..D1390P.pdf See FN 6.

  13. Stevens admitted that that vote on flag burning was a mistake.

    and i think focusing on that one issue may mislead people to believe that Kagan will be better on free speech than Stevens and I think that is very unlikely considering her essays on porn and hate speech.

    In fact I think she sounds very bad on free speech, quite a bit worse than Stevens, and its important that people understand that.

    Im disappointed in Volokhs posts about her, it doesn’t seem like he’s taking the threat her views poses to free speech very seriosuly.

  14. They should put a rip cord above the front seat. If the driver or a passenger panics because they think the car is out of control, they can reach up and yank the rip cord, which is very easy to do when you are panicked or flustered. Much easier than holding a button down for three seconds.

    Pulling the cord will, of course, trigger explosive bolts and jettison all four wheels. Problem solved!

    1. Huh? Wrong thread perhaps? 😉

  15. Where Kagan Is Better Than Stevens on Free Speech isn’t exactly all that confidence-inspiring, if you get my drift…

  16. If a state were to outlaw desecration of a flag, would the prosecution have to prove that the flag had first been made sacred?

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