Censorship

Kagan and Free Speech: Good News and Bad News

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Despite her best efforts to avoid saying anything of substance during her confirmation hearings last week, Supreme Court nominee Elena Kagan did provide some hints about her First Amendment views. The good news is that she distanced herself from the law that the Supreme Court overturned last April in United States v. Stevens, which banned commercial possession or distribution of videos depicting mistreatment of animals. Critics of the ban (including me) worried that Kagan's far-reaching defense of it as solicitor general did not bode well for her commitment to freedom of speech. She urged the Court to recognize a new category of speech that is entirely outside the scope of the First Amendment, saying "whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs." Chief Justice John Roberts called this argument "startling and dangerous." During Wednesday's hearing (PDF), responding to a question from Sen. Orrin Hatch (R-Utah), Kagan said she took that tack because it was the only feasible way to defend a poorly drafted law:

It was a statute that was not drafted with the kind of precision that made it easy to defend from a First Amendment challenge….The only argument that we had was to analogize the statute to other categories of expressive activity that the Court had held were simply not protected by the First Amendment….I hesitate to criticize Congress' work, but…another statue would've been easier to defend on First Amendment grounds…We tried to do the best we could with it.

The bad news is that Kagan, despite her acknowledgment that politicians can easily use campaign finance laws to maintain their hold on power, seems inclined to uphold regulations of the sort the Supreme Court overturned last January in Citizens United v. FEC. In contrast with the way she described her advocacy in Stevens, she did not in any way disavow the positions she took while defending restrictions on political speech by corporations. Here, for example, is her response at Tuesday's hearing (PDF) when Hatch asked her whether Citizens United was "wrongly decided":

I argued the case, of course. I walked up to the podium and I argued strenuously that the bill was constitutional. At least for me when I prepare a case for argument, the first person I convince is myself. Sometimes I'm the last person I convince, but the fist person I convince is myself. And so, you know, I did believe that we had a strong case to make. I tried to make it to the best of my ability.

Kagan's comments on the question of whether the First Amendment allows Congress to ban books under the guise of campaign finance reform were no more reassuring:

What we did in the Citizens United case was to defend the statute as it was written, which applied to all electioneering materials, with the single exception of books, which we told the court were not the kind of classic electioneering materials that posed the concerns that Congress had found to be posed by all electioneering materials of a kind of classic kind. Books are different. Books—you know, nobody uses books in order to campaign.

That claim is more than a little dubious, given all the biographies, manifestos, and public policy books that candidates and their supporters have produced over the years. More to the point, the distinction that Kagan drew between books, which maybe cannot be banned, and "pamphlets," which definitely can, is constitutionally untenable. As Hatch put it, "Do you believe that the protection of the First Amendment should depend on such things as the stiffness of a cover, the presence of a binder, or the number of words on a page?"

Hatch also read a quote from a memo Kagan wrote in 1996, when she was President Clinton's associate White House counsel (emphasis added):

It is unfortunately true that almost any meaningful campaign finance reform proposal raises constitutional issues. This is a result of the Supreme Court's view—which I believe to be mistaken in many cases—that money is speech, and that attempts to limit the influence of money in our political system therefore raise First Amendment problems.

Kagan claimed the memo "was not written by me in my voice" but rather "was meant to reflect the administration's position at the time." But there is no mistaking that when she says "I believe" treating spending on political messages as protected speech is "mistaken in many cases," she is speaking in her own voice. Given the timing of this comment—after Buckley v. Valeo, which drew a First Amendment distinction between contributions and spending, but before McCain-Feingold—it's pretty clear that she believed at least some restrictions on independent expenditures are constitutional.

Daniel Shuchman worried about Kagan's attitude toward book bans last week. I discuss her First Amendment views here and here. Look for my column about Kagan's confirmation hearings tomorrow.

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  1. Caption Contest!

    “If you tell me one more time that I look like Kevin James in drag I’m gonna put a bullet right here.”

  2. There’s no point doing that “secret finger” move when you’re so fat people can’t tell your fingers apart.

  3. As a practical matter, fairly restrictive campaign finance laws may actually help more libertarian candidates to be elected.

      1. One way ticket to Barfelona?

    1. Perhaps in Opposite World.

      1. I don’t know, anything that takes power away from establishment politicians may be a boon to 3rd part candidates.

        1. Hah, I bet the establishment politicians never saw that coming when they wrote and passed the law!

          1. I thought politicians don’t even read the bills they pass?

  4. Books?you know, nobody uses books in order to campaign.

    From this we learn that Kagan never heard of Phyllis Schlafley’s, “A Choice Not an Echo,” or J. Evetts Haley’s “A Texan Looks at Lyndon,” both of which were anti-LBJ campaign books published in 1964.

    1. Or, you know, her appointer’s propaganda pieces.

  5. I hesitate to criticize Congress’ work, but…another statue would’ve been easier to defend on First Amendment grounds…We tried to do the best we could with it.

    Why is it the executive branch’s job to defend every law Congress passes?

    Let Congress defend their own stupid laws. 225 of the representatives and senators are lawyers; surely one or two must be competent.

    1. Which would be more dangerous? Competent or incompetent?

    2. Why is it the executive branch’s job to defend every law Congress passes?

      It isn’t. When the executive branch defends a law it means the executive wants that law on the books.

      1. That’s exactly right. The Executive branch has every right and duty to question the constitutionality of laws passed by Congress. Of course, that’s a little tricky when the president doesn’t exercise the veto, but it’s still true. Whether the administration chooses to defend such laws in court is its prerogative, too.

      2. Though the executive branch is of course given great discretion in the enforcement of laws, isn’t it bound to enforce them at least in appearance of good faith?

        1. In theory, yes, but I doubt seriously that any court would jump into the fray (assuming anyone has standing to bring such a case) if an administration chose not to defend a law in court.

        2. Though the executive branch is of course given great discretion in the enforcement of laws, isn’t it bound to enforce them at least in appearance of good faith?

          Absolutely not. If the President thinks something Congress has passed is unconstitutional, it is his or her sworn duty under the oath of office he or she took to refuse to implement that law, much less reluctantly dredge up weak ass arguments to try to defend the indefensible.

          1. I’m not sure about this. Congress can require executive agencies to both pass rules and enforce them.

          2. The veto is the means by which a President exercises his disapproval of the constitutionality of a law – indeed, early in our history, that was the only rationale under which a veto was expected to be acceptably issued.

          3. The veto is the means by which a President exercises his disapproval of the constitutionality of a law – indeed, early in our history, that was the only rationale under which a veto was expected to be acceptably issued.

            1. Double your pleasure.

      3. In fact, the executive branch has every right to submit court briefs vigorously opposing a law passed by Congress and urging the courts to overturn the law on the grounds it is unconstitutional.

        It’s that pesky separation of powers thing.

        1. I think that’s absolutely true, but what if a president signs a bill into law? He can always argue that he changed his mind about the constitutionality of the law, but it is a little effed up. On the other hand, the courts would be extraordinarily unlikely to take on any challenge that the administration was acting unconstitutionally in not enforcing the legislation.

          Frankly, we should have more internecine battles that occasionally approach the level of constitutional crisis.

    3. Somebody didn’t watch their Schoolhouse Rock, apparently.

      Congress can pass all the bills it wants, but enactment of law requires the president’s signature. At which point the executive branch takes joint ownership of the thing.

      1. Not quite. Congress can override a veto, and a bill can pass into law without the president’s signature.

  6. This is a result of the Supreme Court’s view?which I believe to be mistaken in many cases?that money is speech,

    “Ms. Kagan, do you believe that First Amendment protections extend only to communications made with your unaided voice?”

    “Ms. Kagan, if the First Amendment protects communications made with the use of resources beyond your mere voice, can you explain how Congress can limit the use of those resources to make communications without violating the Constitution?”

  7. What a pic. Is she giving the finger to us Americans?? It’s obviously intentional, what a ‘professional’.

    Our govt leaders are causing great damage, we must pray.

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