Supreme Court

"I know that a solicitor general is required to argue the legal positions of the administration that hired her — but to this extent?"


Civil libertarian Nat Hentoff raises a few concerns about Supreme Court nominee Elena Kagan, particularly her comments during the Citizens United oral arguments about government bans on political speech:

This is how the former dean of the Harvard Law School and a former clerk of Justice Thurgood Marshall answered: "I think a pamphlet would be different. A pamphlet is pretty classic electioneering."

Pamphlets played a key role in how we became the United States of America — including Tom Paine's Common Sense and The Crisis; John Dickinson's Letters from a Farmer in Pennsylvania, and Samuel Adams' The Rights of the Colonists, among others.

Later rejecting Kagan's argument, Roberts noted that the government had taken a position, as argued by Kagan, that embraced "a theory of the First Amendment that would allow censorship not only of television and radio broadcasts, but of pamphlets."

I know that a solicitor general is required to argue the legal positions of the administration that hired her — but to this extent?

Read the rest here. Reason weighed in on Kagan's free speech record here and here.

NEXT: A Federal Censor For the Web?

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  1. The Intertubes ain’t broke so there’s no need to fix it, Copps, you power-mad cocksucker.

  2. LOL, Sounds like a whole lotta political hooplah to me dude.


    1. Just strip out the html. Why is Reason supporting this shitbag spammer?

      1. Just keep right on talkin big man. See how tough you are after i find my gun LOL


  3. I don’t know about all the nuances of the case or her theory, but it’s unsurprising to me that the theory you choose to defend a silly and blatantly unconstitutional law would lead you to adopt lots of silly and blatantly unconstitutional positions on many issues.

  4. Hentoff is God.

    But if he ran for office, the LP would probably oppose him, too — considering he’s pro-life.

  5. What’s depressingly common amongst left-liberals is their insistence that the passage of time changes fundamental principles of liberty. We moderns in 2010 are somehow different from those in 1776, because now we have the internet, cell phones and large corporations? Or is the left’s real (and more nefarious) argument this: that we never should have had those freedoms in the first place?

    1. People get retarded when it comes to television.

  6. So she argued that a pamphlet is basically the same as a radio spot or television ad. Um…isn’t that just simple logic? Makes sense to me.

    1. You’re obfuscating the issue. She argued that regulators can ban political pamphlets.

    2. Yes, and she concluded from that argument that a pamphlet can be restricted like a radio or a television ad. Seeing the logic, she went with the conclusion that was most restrictive of liberty, not the least restrictive.

    3. No, it’s quite far from “just simple logic” and actually makes no sense at all.

  7. . . . . .

    We are indispensable. And we demand royalties.

  8. Is there freakin’ NOTHING the federal government can’t decide for us? Next, they’ll require that audiences for lacrosse be the same size as for the NFL. You know, to be fair to the girls and skinny guys.

  9. Come on, reason, if you are going to excerpt from Hentoff, don’t be so lazy that the excerpt does not make sense.

    For those of you wondering what the question was:

    Chief Justice John Roberts asked Kagan how she far thought the government should be allowed to go in curbing corporate political speech.

    She had said, he noted, that she would not go so far as to censor books.

    But what about pamphlets? he wondered.

    A few more lines of text would have made this a lot clearer.

    1. Ah, so!

  10. She had said, he noted, that she would not go so far as to censor books.

    Of course, this approach will require the drafting of several dozen pages distinguishing between “books” as properly defined, that enjoy a safe harbor from federal content control, “pamphlets”, “flyers”, “magazines”, “newspapers”, “inserts”, “posters”, “billboards”, all of which will be subject to varying degrees of regulation as to size, content, typeface, length, language access requirements, and so forth.

    But its all cool.

    1. photocopies?
      readable stuff on Kindle?
      What if its 3 pages (pamphlet size, but in 0.000005 font, making it equivalent to 130 volumes)?
      Ah, the slope is slippery (heh, heh – slippery) and long (heh, heh – long).

      1. Don’t forget playing cards. Political campaigning and gambling. Too bad to resist.

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