Kagan and Free Speech: Good News and Bad News

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.