With many having ceded their objectivity to the meme that Supreme Court nominee Elena Kagan has left no public footprints by which to assess her judicial philosophy, her long standing views on watering down free speech rights have slipped beneath the radar. Until now. First announced publicly in a convention speech seventeen years ago, Kagan appears to fall within a minority of legal scholarship that would address constitutional issues of free speech from the perspective that some speech is less valuable than other speech. Known as “low value” speech, such expression should, according to this approach, be subject to a lower standard of constitutional scrutiny under the First Amendment.
Kagan first began giving public voice to her views in 1993 when she spoke at a legal convention in Chicago that focused on combating pornography. The views she expressed over the years include “hate speech” in addition to obscenity. Within this view, as she argued as recently as last year in U. S. v. Stevens, constitutional analysis should begin by first categorizing speech to determine whether it falls into the category of “low value” speech. If it does, it would be afforded less protection than other speech. The Stevens case involved “crush” videos where the killing of animals is part of a sexual fetish. Of Kagan’s “low value” speech argument, writing for an 8-1 majority (Alito was the dissenter), Chief Justice Roberts said,
“As a free floating test for First Amendment coverage [Kagan’s approach] is startling and dangerous.“
The views expressed in her brief and argument in Stevens caused concern not just for the conservative Roberts, but for civil libertarian and anti-censorship advocates as well. Former Indiana University law professor and anti-censorship advocate Cathy Crosson, said of Kagan’s position,
“I think the Stevens case is really a very recent smoking gun….Never in any administration would I expect to see a brief like that out of the Justice Department in terms of a frontal assault on the most basic First Amendment principles…”
To the extent that her Supreme Court argument echoed themes from her 1993 speech and subsequent law review article on the subject, it seems unlikely that she was doing no more than defending the law as part of her job as Solicitor General. The arguments she advanced, specifically the “low value” speech and speech categorization arguments, were unnecessary, in the eyes of many, to defending the government’s position.
Obscenity, pornography and hate speech are not subjects of popular approval. But, history is replete with categorizations of those subjects being proven false in later generations. Hate speech in particular has long been part of political dialogue, even if a disagreeable part to most of us. One cannot help but wonder who will set the standards of what speech falls into which category, and which speech will then be left unprotected from the myopic judgment of pandering legislators and holier-than-thou judges.
Some, as in this Politico article, suggest that Republicans are ignoring Kagan’s anti-pornography views because it doesn’t fit their characterization of her as a liberal shill, and that Democrats remain silent lest they offend civil libertarians and anti-censorship advocates.
[Author’s Note: the First Amendment of the U. S. Constitution reads: “Congress shall make no law…abridging the freedom of speech.”
Cross posted at Elijah’s Sweete Spot.
Contributor, aka tidbits. Retired attorney in complex litigation, death penalty defense and constitutional law. Former Nat’l Board Chair: Alzheimer’s Association. Served on multiple political campaigns, including two for U.S. Senator Mark O. Hatfield (R-OR). Contributing author to three legal books and multiple legal publications.