Supreme Court

Will Elena Kagan Allow Books to be Banned?

Understanding the Supreme Court nominee's chilling argument in Citizens United


As solicitor general of the United States, Elena Kagan argued in front of the Supreme Court that the federal government had the constitutional authority to ban certain political pamphlets. She also strongly implied that some political books, if they were partisan enough, could also be censored. 

Kagan's extraordinary claims emerged during the second oral argument of Citizens United v. Federal Election Commission, the campaign finance case made famous by President Barack Obama when he publicly excoriated the justices for their ruling during his State of the Union address. The president alleged that Citizens United would allow corporations to subvert the political process with their economic power. In fact, the case concerns the fundamental political liberties of all citizens. The true stakes were dramatically revealed in the two rounds of oral argument heard by the Court.

In the first argument before the Court, on March 24, 2009, Kagan's deputy, Malcolm L. Stewart, represented the government by arguing for the constitutionality of a statute prohibiting corporations and unions from spending funds from their general treasuries to advocate the election or defeat of political candidates. The justices subjected Stewart to a series of stark hypothetical situations testing the extent of the censorship power that the Obama Administration viewed as constitutionally permissible.

For example, Stewart was asked by Chief Justice John Roberts what would happen if a corporation were to publish a 500-page book discussing the American political system which concluded with a single sentence endorsing a particular candidate. Kagan's deputy answered that such an endorsement would constitute "express advocacy" and therefore the corporation could only fund the publication of the book through a political action committee. "And if they didn't, you could ban it?" asked the chief justice. "If they didn't, we could prohibit publication of the book," Stewart replied.

Even the most liberal justices, usually the most willing to curtail political free speech, seemed a little troubled. Justice David Souter asked what would happen if a labor union paid an author to write a book advocating the election of a particular candidate and then submitted the manuscript to Random House, which then agreed to publish it. The deputy solicitor general replied that he was unsure whether there would be a basis for suppressing such a book, but clearly stated that "the labor union's conduct would be prohibited." 

Later, the argument turned to other forms of media that the government would have the right to censor. The implications of the administration's position were so enormous that Justice Antonin Scalia seemed almost incredulous. He sarcastically interrupted to say "I'm a little disoriented here, Mr. Stewart. We are dealing with a constitutional provision, are we not; the one that I remember which says Congress shall make no law abridging the freedom of the press? That's what we're interpreting here?" With no apparent irony, Stewart replied, "That's correct."

The justices were apparently concerned by what they heard, requesting an unusual second oral argument in the case, on September 9, 2009. This time, Kagan went to the Supreme Court herself. Justice Ruth Bader Ginsburg got right to the point by asking Kagan whether it was still the government's position that Congress could ban TV, radio, and newspaper ads, and even campaign biographies under the rubric of campaign finance reform. "The government's answer has changed," Kagan replied, which sparked laughter in the courtroom. Given the skeptical questioning at the prior hearing, Kagan seems to have made the tactical decision to back off from her office's initial claims and opted to craft a less controversial way of getting the justices to accept significant restrictions on free speech. She assured the Court that she took their prior reactions and hypotheticals "very seriously" and that the Obama Administration reconsidered its position. Perhaps this is an example of her reputed pragmatism and interest in building coalitions. In any event, her attempted finesse did not stand up so well under cross-examination.

Kagan conceded that although the statute in question did cover "full length books" it would be subject to "quite good" challenges if it was ever so applied in practice. Moreover, she pointed out that the Federal Election Commission never enforced the law with respect to books, implying that citizens should not worry about being prosecuted. Chief Justice Roberts immediately seized on this, saying "We don't put our First Amendment rights in the hands of FEC bureaucrats." He then asked whether the statute could be used to ban a pamphlet. Such a publication, Kagan admitted, would be different; "a pamphlet is pretty classic electioneering" and could be constitutionally prohibited. She tried to reassure the justices that a book containing hundreds of pages could not be banned just because the last sentence endorsed a candidate, as her deputy had claimed a few months earlier. However, she strongly implied that if the book engaged in "express advocacy" as a whole, it could be banned. Her position would seem to require the FEC to define the differences between books and pamphlets and decide how many sentences in a book are necessary to qualify as "express advocacy." Kagan never addressed whether it was desirable for FEC staffers to become either book reviewers or a de facto national censorship committee. Ultimately, the Court ruled against Kagan by a 5-4 margin.

Many questions remain unanswered about Kagan's comfort with banning political publications and limiting free expression in other media. She might say that her own views on these issues are private and that she was merely advocating for her client in this case. However, it is interesting to note that in nominating Kagan, President Obama went out of his way to praise her defence of ordinary citizens against "unscrupulous corporations," citing her work on Citizens United in particular. "Despite long odds of success, with most legal analysts believing the government was unlikely to prevail in this case, Elena still chose it as her very first case to argue before the Court," Obama declared.

Yet Obama and Kagan both ignored the fact that not all corporations that advocate for candidates are big and "unscrupulous." Most are sole proprietorships of small businesses, and many are non-profits, as was the plaintiff in Citizens United. 

As the Senate considers her nomination this week, they ought to ask her the following:

• If a citizen who is the sole owner of a corporation that operates a bakery wants to use his business funds to put a candidate's poster in his storefront window, can that be banned under the Constitution?

• If a group of like-minded citizens form a corporation for the purpose of advocating for candidates in whom they believe, can that corporation constitutionally be prevented from spending money?

• Is it constitutional for the FEC to review political books for content and ban them if they run afoul of a campaign finance law?

• Is it constitutional for media companies to publish content advocating for political candidates? If so, why should they be different from other companies under the Constitution?

• If a corporation or labor union produces a pamphlet with its own funds advocating the election of a candidate, can that document be banned under the Constitution?

The answers would reveal a lot about what kind of justice Kagan might be and how she reconciles her views with the First Amendment. Perhaps more importantly, it would be an opportunity for the public to see what is truly at stake when the government wants to restrict an individual or corporation's ability to support the candidates of its choice.

Daniel Shuchman is a New York money manager and a member of the Board of Directors of the Foundation for Individual Rights in Education. He has written for The Wall Street Journal and The Harvard Journal of Law and Public Policy.

NEXT: G20 Roundup

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  1. As solicitor general of the United States, Elena Kagan argued in front of the Supreme Court that the federal government had the constitutional authority to ban certain political pamphlets. She also strongly implied that some political books, if they were partisan enough, could also be censored.

    So she’s a fascist – what else is new?

    1. It just proves that American exceptionalism is real. In America even a fat little Jewish dumpling can grow up to be a fascist! Opportunity for all!

  2. The answers would reveal a lot about what kind of justice Kagan might be and how she reconciles her views with the First Amendment.

    The answers would reveal a lot of doubletalk and ducking the question.

    Kagan knows she has the votes to get confirmed without revealing anything substantive about her views.

    1. She did reply, however (to a different question) that her job as solicitor general required her to attack various legal issues from her employer’s camp. She was just doing her job. Following orders. Is it very much different from the role a defense attorney plays (or a prosecutor, for that matter)? The pertinent question here is not whether she should have argued her side’s case in Citizens United to the best of her ability, but whether she actually believed her own arguments. If she did believe it, and would have been sympathetic to those arguments as a justice, then that is indeed “troubling,” to say the least.

      1. What’s really troubling is that four Supreme Court Justices were sympathetic to her argument. Highly sympathetic. Other than the typical (and always highly situational) references to “judicial restraint” and “stare decisis,” their primary argument was: Hey, banning books and stuff for a relatively short time isn’t actually censorship, and anyway, why don’t we give it a chance and see if it’s really all that bad before overruling it? Ridiculous!

        1. The now-common 5-4 split on cases that touch the Constitution at the conceptual level is cause for concern. Obama is about to seat his second justice. When Justice Ginsburg’s pancreatic cancer kills her or forces her retirement, Obama will seat his third. If he is reelected, he may have a chance at a fourth and even a fifth, tipping the 5-4 balance to the liberal-progressive side. All the recent good-news decisions will become a thing of the distant past. Have a nice day.

          1. It’s true; our liberty is hanging by a thread like a loose tooth.

          2. The now-common 5-4 split on cases that touch the Constitution at the conceptual level is cause for concern.


            The Conservative Wing is far from perfect, you never know where they are going to go on fourth and fifth amendment matters, like warrantless searches, but my Gawd, the liberal judges can always be counted on to hatesss on the Second Amendment. It is as if they would not even be considered by a Democrat, no matter if that Democrat’s legislative record itself isn’t terrible on the issue, unless they line up with the banners.

      2. Hmmm. Just doing her job? I believe the Nazi war criminals tried that arguement in Nuremburg. Didn’t work then, doesn’t work now.

        1. It works when you’re in the majority and you have lifetime tenure.

    2. There’s always breast cancer. And if she has helped to impose state monopoly medicine, the opportunity to interview ambush her as she slinks off to a private clinic in the Caymans for medical treatment.

  3. These are too easy for her to duck, bob, and weave around, claiming they’d tip her hand as to how she might vote on a specific case, or some other such rhetorical fig leaf.

    I’d like to see her be pressed for a straight up answer to her apparent ethical lapses as a member of the Clinto WH when she seems to have authored political verbiage and then pressed a supposedly non-partisan scientific review body to substitute it for the actual results of their review – a la Salazar’s recent move when he blatantly lied about the recommendation of the experts they asked about the drilling ban.

    That. . .might make for an interesting day on the Hill.

  4. I trust the American Library Association has condemned her nomination. I couldn’t find anything on their website but I’m sure they have, right?

    1. Even the most liberal justices, usually the most willing to curtail political free speech

      Sad but true, isn’t it? Conservatives get tagged as “book burners” because of controversies about books in grade schools, but banning political writings before an election? Oh that’s “progressive” “campaign finance reform,” don’t you know.

    2. The ALA is composed mainly of gay men and childless spinsters. As such they only get upset if a married woman with kids like Palin is accused of wanting to ban books. Fat little red diaper dykes banning books is A OK.

      1. you are an idiot. the ALA is not all gay men and childless spinsters. your IQ is probably as lacking as your manners.


    1. She’s very hot in certain Eastern European countries.

        1. Yes, Russian and Ukranian girls are very hot. Romanian girls are even hotter. But Bulgarian women have nice personalities.

          1. I knew a very attractive Bulgarian chick in college.

          2. Actually, I have worked with a very attractive Bulgarian woman for the last 3 years. Perhaps it was her looks that let her live much more comfortably than most Bulgarians, leading to a certain wistful nostalgia for the days of communism.

          3. Czechs can be very attractive, as well.

      1. You are overlooking the fact that she is probably attracted to Eastern European women herself. The type one finds on Czech porn sites like Sapphic Erotica.

      2. Wow. I’m not a Republican but it has to be said that not only are Republican politicians hotter than Demwit — tall athletic people (and whole families) like the Romneys, Palins, Flakes, Thunes, Cantors, Ryans, Bachmans, Blackburns, Pauls, vs fugly pie cows like McCaskill, Frank and Grayson, and subhuman mutants like Waxman and Carville, but even Republican confirmed batchelorettes (Condi Rice, Mary Cheney) are way hotter than Demwit spinsters (Jamie Gorelick, Elena Kagan).

        Aside from the insult of having to listen to the lies coming out of Demwit pieholes, who wants to look at this collection of underwear stains on TV?

    2. Boobs mcgee for SCOTUS!

      Sad thing is, If my other choice is kagan, I dont think Im kidding

    3. Yeah, she looks like Rachel Maddow’s ugly older sister. It’s pretty hideous.

      1. I think you mean ugliER.

  6. How come Libertarians only seem to get their panties in a bunch when it comes to corporate rights? Never mind the dipshits on the right that you all are in bed with – who are quite skilled in suppressing views that they find objectionable. I come to Reason looking for honest debate, but almost all I see are articles like this one trying to paint liberals as fascists because they would suppress the apparent rights of corporations.

    For ucks sake, please show some balance. Liberals can be arrogant, elitist, nanny-state assholes…on this we all can agree. But conservatives (the religious ones in particular) are, by-far, some of the most ignorant, small minded, mouth breathing dipshits around. And you all carry their water…Just look at the ads on this website (I’ve seen the same stupid shirts on World Net Daily)

    1. Evidence?

    2. As far as who I would choose to socialize with, you’re exactly right. Liberal cocktail parties are far superior.

      As far as political action goes, leftists have been far more destructive to liberty than rightists. The New Deal pandaemon, the War on Drugs, the income tax, eminent domain abuse…vs. what? Abstinence education and the stem cell research funding ban?

      1. Sorry Tupla, I think you meant to say “Federally funded” stem cell research ban. There is no ban on stem cell research.

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

    4. but almost all I see are articles like this one trying to paint liberals as fascists because they would suppress the apparent rights of corporations.

      A “corporation” is nothing but a group of individuals.

      What “opression of the day” is the hobbyhorse you wish to ride?

      1. Except a corporation never dies… is granted limited liability for its “individuals” and wants all the rights under the Bill of Rights. I say that right there renders a ‘corporation’ GOD.

    5. I guess you slept through the last election. Take a guess at who’s in power right now.

    6. Not been around here long, eh?

      Read some of the archives from the previous administrations tenure to get a stomach full of bilious ranting about “conservative” assholishness.

    7. “…but almost all I see are articles like this one trying to paint liberals as fascists because they would suppress the apparent rights of corporations.”

      The article did not paint liberals as fascists, Obama and Kagan did that themselves by putting forth such an absurd argument.

      Also, I fail to see in the text any words that would justify an exception to “…shall make no law…” as it applies to corporations.

    8. Damn right hummm man. We Libertarians quit school in the 5th grade to make our corporate fortunes. Now don’t you feel stupid with those silly student loans to repay?

    9. Damn. All liberal/progresives are starting to sound like trolls. I might have to lay off for a while.

    10. I think your error is to view this as a matter of “corporate rights.” If ten people took turns standing on a soapbox in a park and promoted a candidate, we’d all agree that should be unrestricted political speech. But what if they formed a legal entity to publish a book or make a movie? Or started a blog or a union? Is there really any justification for “campaign finance reform” to stop those forms of “corporate” electioneering?

      And how come billion-dollar corporations like the New York Times get to endorse candidates on their editorial page whenever they want, and CBS/ABC/NBC/CNN/Fox can make an in-depth profile of a candidate just before an election, but (until the decision) Citizens United couldn’t distribute a documentary during the same time?

    11. David Weigel, is that you?

    12. LOL! You claim to look to Reason for honest debate, then call the right “dipshits” and and go on to call conservitives “ignorant, small minded dipshits”.

      Is that what you call honest debate? What a fool.

      1. You are so closed minded that it makes me physically ill, JohnD. There is clearly no honest debate to be had with you. By the by, does the D stand for “dipshit”?

        1. I think you meant ‘by the bye’.

    13. We can’t have free speech if we don’t censor some political pamphlets.

    14. Hey retard, your masters take giant campaign contributions from BP and live entirely off creating counterfeit money through the Fed and feeding it to their Wall Street cronies.

      Since your head is already empty go do charity work by letting people in a homeless shelter skull fuck you, you silly bitch.

  7. Would “Common Sense” be banned?

    1. You bet’cha!

    2. I haven’t seen a moment of it since this administration took office.

  8. Libertopia: Where your freedom of speech, press, association and personal property are protected…unless someone can make a fast buck violating them.

    1. Hang on, Elena! I’m coming to rescue you from the exposed absurdity of your positions!

    2. Progtopia: Where your freedom of speech, press, association and personal property are protected…unless its inconvenient to the purposes of intellectual ruling class.

      1. Much better having an inbred dumbass ruling class.

        1. The two tend to become the same.

  9. I have an idea. Why don’t Americans organize an army of people across the country and on the count of three have them scream in unison: Fuck you!

    1. I’m against it.

    2. Sounds good to me.

      1. Give me just a second for me to make that illegal!

  10. Does this mean we can have those little signs that stick in yards and at intersections with a candidates name on them banned? Pleeeeeeeeeease?

  11. Kagan might be willing to put the clamps on private political speech, but she’s not about to stand in the way of the runaway train called the Federal Government:

  12. Elena Kagan has problems with free speech generally. Certainly not a good pick for the Supreme Court.

    1. Good find.

  13. The guys that canned Dan might have another smoking document gun.…..026643.php

    1. Yeah, that’s highly unethical to say the least.

      1. And not to beat the old horse, but imagine the media uproar if an official in a Republican administration had skewed a scientific report on abortion in the other direction. They’d have been perfectly justified in their outrage, but this they’ll just ignore.

    2. We will put science back in its rightful place in society, a consortium of paid hacks espousing leftist talking points with strict administrative oversight from are most loyal partisans to insure that the right message is always reported.

      1. Worst homophone error ever. Yeats would not have even bothered using ‘our’ and ‘are’ as a slant rhyme, and he could really shit up a poem or two with bad slant rhymes.

  14. Too many times, a SCOTUS candidate is pitted ‘gainst his/her replacement.

    Liberal 4 liberal. Conserv 4 conserv.

    If this woman’s frightening contempt for, for JHC, the First Ammendment is so well in place, as seen in her eyes as impeding the political will of a less-than-dubious agenda. Well godddam, all I can say is can we keep Stephens. Can we embalm him and put him in a tomb and authorize clairvoyants to summon his vote?

  15. Elena Kagan’s Fascist Tendencies are very concerning.

    1. Uhh… well, um… I must say, my fascist tendencies would never be actually applied in a fascist way, and it never even has before.

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  17. Of course the government can’t “ban” anything. There’s no ban button to push to make it all stop. They can just come and imprison you or kill you if you keep doing it, even after they tell you to stop. Unless you’re a corporation, then they can’t even do that.

  18. All media must serve the Economic State in a Socialist Utopia.

    Anthony Burgess, the author of “A Clockwork Orange” once observed in his novel “Honey for the Bears”, that only in the Soviet Union and America is Art politicized.

    Get ready for more of this, your behavior must be controlled. Controlling your behavior is critical to controlling the economy. The Economy would be linear and conform to a Keynesian model if it weren’t for the goddamn Public and their irrational nonlinear behavior.

    Your entire worldview must be shaped by the State. Political pamphlets, TV, all media, and even religion must conform to accepted political views and economic requirements.

    The court system is a critical component of our plan to create the most fair, socially just system ever conceived. It will be a glorious brave new world in which each member of the public will sacrifice himself heroically for the Economic State and the well being of his fellow man.

    We should also establish control over the economy of the entire world and bring them into the Economic State by bringing democracy to every country in the world that does not already have democracy. Iraq, Afghanistan, and Kosovo are a start, but we need to expand the scope of the Economic State to include Iran, Russia, and China as well. No country should believe they are above or outside the Global Economic State.

    When we, together have established this New World Order, there will no longer be any poverty or inequity. All the Worlds people will be equal and will serve the Global Economic State.

    Oh God! I’m about to have an orgasm just thinking about it!

    1. I apologize comrades. I unconsciously committed thought crime. I have used sexist language. Let me correct the following sentence.

      It will be a glorious brave new world in which each member of the public will sacrifice their self heroically for the Economic State and the well being of her fellow consumers.

    2. You’re sure no Anthony Burgess.

      1. Nice and horrorshow, me droog.

      2. I actually don’t remember writing this.

        Last night I was drinking Spaten and taking shots of Jager, and when I woke up, this is one of the things I found.

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    1. Let me know when you have a community for guys in their fifties, composed of women in their twenties who are skinny, small to medium sized boobs, and ideal waist to hip ratios.

      Where ideal is defined as waist/hips is less than or equal to seventy percent

    2. Do you think that is what Elena is looking for? I have my doubts.

  20. I am beginning to think the woman is actually a little on the stupid side.

    For instance, she thought there would be no problem with this law being overly broad, demonstrating she had no idea that a chilling effect was a serious concern, or having no concern for it herself.

    And then there is the “eat your vegetables” clip. Literally either she thinks congress can command you to eat your vegetables, or she had no idea what kyl is asking.

    That being said, i actually support her nomination? why? look we are not going to get a nominee we actually want. that’s a given. so the next best thing is someone who advocates POORLY for what we don’t want. The fact is kagan left a turd in this swimming pool. she alienated Kennedy completely and tanked the whole case herself. it was so poorly done, a conspiracy-minded person would think she did that intentionally.

    I look forward to similar performances on other issues.

    1. It won’t matter if she performs poorly as long as she votes the way she is told. Useful idiots have lead themselves and their loved ones strait into death with a smile on their face and believing blindly in their leadership until the bitter end.

      We’re heading for the next dark age.

      1. Fat Jewish women who have never had children fall into three groups with increased risks for various cancers.

  21. Are we really having this conversation?

  22. Are we really having this converstation? Banning political books? That’s the most basic foundation of the Constitution and this country.

  23. It certainly seems like her comments are quite clear: if congress passed such a law, she would not strike it down as unconstitutional…even though it’s supremely unconstitutional.

    Let’s not forget that Kagan also believes congress has the right, through the commerce clause, to regulate what we can and cannot eat. Uh, wasn’t the commerce clause created to ensure free trade among the states? And yet today, it’s the most abused part of our constitution.

    Check out our piece on about why Kagan’s appointment will only lead to more trouble for our liberties:…..stice.html

  24. next question; Should the publication of ” The Audacity of Hope” be banned?

    1. Fuck yes.

      1. Let’s not stoop. At least put it in the fiction or comic section.

  25. Don’t know why the Republicans are doing such a lousy job questioning Kagan given her track record of ignoring laws she doesn’t agree with, falsifying court documents and past behavior like this. Can’t they get it together and really question her without playing up to the cameras and pretending to be nicey-nicey?? This woman will have a profound impact on or civil liberties and we all deserve to know who she really is!

    1. “Don’t know why the Republicans are doing such a lousy job”

      Because they’re Republicans?

  26. Uh, you can’t judge her opinions based on how she argued a case before the Supreme Court as solicitor general.

    Her job is to DEFEND HER EMPLOYER. She is required by law to defend the laws passed by our Congress.

    This would be a bit like taking a defense attorney, watching that he defended an obvious murder and concluding that he thinks murder is OK.

  27. So, If I officially endorse a candidate on this web site, can Reason be banned?

    1. Workin’ on it!

    2. Reason is the only magazine that had its editors and regular contributors declare their votes.

      Therefore it will be banned first.

  28. I love how Republicans (aka Libertarians) want to frame the criticism of the Citizens United case as an attack on books, or pamphlets, or free speech. As if mom and pop shops supporting a particular candidate is at stake here or have any kind of substantial influence over elections. As if they have a fraction of the money that large multinational corporations have to spend on elections. As if unions, who spend about 1% the amount that large companies spend, have a significant impact on elections the way large companies do. So this is the tactic, let’s take the focus off of huge multinational corporations with more money than GOD, and frame this as an attack on the free speech of some po’dunk small business in Hansford, WV. What a fucking stretch this place is.

    1. Can you explain how a law that is designed to prevent “evil corporations” from influencing elections would NOT hamper free speech from all groups, given that laws are supposed to apply equally to everyone?

      Now if you claim that it is the government’s job to pick winners and losers, and legislate accordingly, then go ahead and move along. You will NEVER understand libertarians, or the underlying philosophy that this country is built on.

      1. That’s the problem with you libertarians. You think a theory should apply across the board, making no effort to understand the complexities of the real world. “Free speech above all” even if it means one company with more money than GOD get’s to decide our elections.

        1. That’s the problem with you libertarians statists. You think a theory should apply across the board, making no effort to understand the complexities of the real world. “Free speech above all can be sacrificed” even if it means one company with more money than GOD get’s to decide our elections you can muzzle an opponent.

          Fixed that for ya.

    2. So this is the tactic, let’s take the focus off of huge multinational corporations

      You mean huge multinational corporations like Citizens United, the plaintiffs in the case at hand?


        Who benefits from getting to spend as much money as possible in elections under the ridiculous idea that corporations are persons with free speech? Is it mom and pop ice cream shop or BP? This place is laughable at best. Corporations are GOD don’t you know. They have limited liability, never die, can never go to jail, yet should get every single right under the Bill of Rights. Why don’t we just all give up our social security numbers and get FEIN’s instead and become corporations? That way we don’t ever have to be accountable for anything, we can file bankruptcy and just start another company, we can merge with other huge companies and amass unGODly amounts of money, yet still have every single right that a person has. Sounds like a deal to me!! Don’t worry, everything will work under the magic of the free market.

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  30. I am now stupider for having read this tripe. Kagan a book burner? Please.

  31. There, where one burns books, one in the end burns men.

    (And what, pray tell, precedes the burning of books?)

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  33. She has the right of free speech, this is pure sensorship.

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