Jay B Gaskill

Attorney at Law

The former Alameda County (CA) Public Defender

Free speech is never safe. No society can be free without free speech, as that condition is commonly understood in the USA – consisting of a free press to be sure, but also of a wideband freedom from all political censorship that protects all forms of communication through all forms of media — oral, audio-video, electronic, film or live appearance.

And no free society can sustain itself without robust legal protections for free speech meaning, at a minimum, that contents-censorship is strictly forbidden, especially by the political elites and their apparatchiks.

The single most reliable, consistent and powerful friend of free speech in the 20th century USA was Supreme Court Justice William O Douglas, appointed to the high court by FDR in 1939, serving until 1974.

Douglas wrote: “The Constitution is not neutral. It was designed to take the government off the backs of the people.” During the tenure of Justice Douglas and under his leadership SCOTUS erected a constitutional firewall against the political regulation of speech, starting with the bright line injunction of the First Amendment of the constitution, “Congress shall make no law … abridging the freedom of speech, or of the press”.

As Douglas put it in a concurring opinion:

“I do not believe any form of censorship—no matter how speedy or prolonged it may be—is permissible. As I see it, a pictorial presentation occupies as preferred a position as any other form of expression. If censors are banned from the publishing business, from the pulpit, from the public platform—as they are—they should be banned from the theatre.” 380 US 51, Freedman v. State of Maryland

The Douglas vacancy was filled by Justice Stephens, whose retirement has given Mr. Obama the opportunity to nominate Elena Kagan. Regrettably, Ms Kagan’s views on the first Amendment’s protection of speech are a far cry from those of Justice Douglas.

I know something of the constitution and have a particular interest in the high court’s free speech cases.

So much deference is given to the ban against contents censorship that the “prior restraint” of a communication is almost never lawful, requiring a convincing showing of a clear and present danger of serious imminent harm, and even then the restraint is only temporary, until the harm is past. The other exceptions that allow some censorship (child pornography) or subsequent punishment (fraud or incitement to riot) are so tightly drawn that the resulting jurisprudential firewall remains secure.

But Elena Kagan is poised to change all that.

The 21st century’s information avalanche presents special challenges to free communication, among them the growing entanglement of the government with all our e-communications access pipelines, retailers and providers, through a process of creeping utility-status via regulation. Imagine just how secure free speech would remain if the government was deep into regulation of all printing presses and distribution channels.

The three Murphy’s Laws of government behavior operate with particular force here:

Once allowed in any area of human activity, governments always test and eventually penetrate the protective boundaries that were originally set up to contain it.
The more “noble” the governmental purpose driving this invasion process, the quicker and deeper it progresses.
The results are always a perversion of the announced “beneficent” purposes, and never fail to backfire.  Unfortunately, freedom lost is hard to regain.

We’ve seen this play out in the FCC’s “protective role” for all over-the-air communications. Have we already forgotten the threat portended by the so called “fairness doctrine”? In the presumed interests of mandating “balanced” programming, the application of that brainchild-of-the left to broadcast radio would kill conservative talk-show programming, leaving the present left-leaning dominance of liberal print and network programming without any significant countervailing voice. This malign outcome should shock even the old fashioned liberals who still believe in free speech, the right of dissent and the commitment to duty to protect the speech of those with whom we disagree.

My earliest reaction to the Kagan nomination was to note how unusual it was that such an ambitious and politically savvy lawyer could have left such a thin paper trial. I concluded that she did so out of political calculation because her more extreme form of liberalism was out of step with that of the electorate. I noted that her teaching career at the University of Chicago overlapped with that of Mr. Obama. I described her views as deeply cloaked.

Where the free speech issue is concerned, the Kagan cloak has been breached.

Late to the party, some conservatives and principled liberals of the William O Douglas stripe are just now waking up to the fact that Ms Kagan is a potential threat to free speech, based on a more careful analysis of the arguments she has made on behalf of the Obama Administration as Solicitor General.

As Solicitor General, one’s positions are determined by the client, in Kagan’s situation, the current administration. But the chief counsel for the government before the Supreme Court does get to select the arguments on which the government relies.

The following news account and analysis should be disturbing to all of us who retain a strong commitment to freedom of speech and a concomitant suspicion of any regulation of speech by government.

“As an illustration why, consider this quote dug up by the First Amendment Center’s David L. Hudson, who found it in a government brief signed by Kagan in United States v Stevens: “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.”

“The case concerned a statute that made it criminally unlawful to depict animal cruelty. The Court rejected Kagan’s reasoning, but had the justices accepted her assertion, it would have effectively repealed the First Amendment’s protection of speech and replaced it by granting government the authority to decide what speech should be permitted.”



A Smoking Law Review

But there is something on record more definitive. In 1996, Professor Kagan wrote a highly revealing article for University of Chicago Law Review ( ), “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine.”

In that article, Kagan actually proposes that a form of contents censorship would be justified and upheld by her view of the constitution. It’s all about the government’s supposedly benign purpose.

“But distortion of public discourse might arise also (or instead) from the many rules of property and other law that, without focusing or intending to focus on any particular speech, determine who has access to expressive opportunities. If there is an ‘overabundance’ of an idea in the absence of direct governmental action-which there well might be when compared with some ideal state of public debate-then action disfavoring that idea might ‘unskew,’ rather than skew, public discourse.”

Kagan’s term skew means some notion of balance as it might appear to her or some other government official at the time. A debate or discussion might be “distorted” for example because there is too much “unrealistic” talk about free markets and too little talk about social justice.

“Were courts primarily concerned with distortion they would at least modify the strict distinction between content-based and least modify the strict distinction between content-based and content-neutral laws to respond to the host of cases in which they could directly evaluate skewing effects. Indeed, to the extent this conclusion is wrong, it is so because of a fear of improper motive.” [my emphasis]

Kagan’s approval of contents censorship is unambiguously implied here; her meaning is conveyed without actually using that “hot” word, much like we talk about putting a euthanized kitten “to sleep”. She is actually saying here that content-based regulation of speech, designed to restore “balance” could be upheld because of the “good” governmental motive. As she argues, a policy of ignoring contents (i.e., not using the contents of what someone is saying to punish or censor speech) is on a equal footing with taking contents into account (i.e., using contents to promote some speech while suppressing other speech), because the whole game is about the government’s happy purpose in doing so.

William O Douglas is rolling over in his grave.

Caught up in the force of her own argument, Kagan allows her careful rhetorical cloak to part, revealing the outline of her proposed attack on the free speech firewall we have enjoyed for the last 75 years.

See page 445

“…a general ban on billboards will reduce speech more than a ban on bill-boards for political advertisements, which in turn will reduce speech more than a ban on billboards disabling only Democrats. Yet under current law, the Court will subject the first of these ordinances to the most relaxed form of review and the last to the strictest.”

Only a liberal of an entirely new type, one supporting a radical departure from traditional free speech jurisprudence, could possibly have composed those lines. By necessary implication Kagan was suggesting that a governmental body, properly motivated, could “adjust” of balance billboard contents, even in political advocacy cases.

The founders of this country knew better than to trust elected officials from any single branch of government or any bureaucrat to make coercive judgments on a “we know what’s best for you” basis, or to trust any one or combination of two branches to do so.

Each branch of government was designed to act as a check and balance against the other.

But Kagan’s speech regulation schema would have local authorities free to censor content in the service of achieving a balanced debate only subject to review by the courts, who also would be empowered to do the same thing. The problem presented is simple: Immediate censorship can alter the very power structure in ways that cannot easily be undone. Only the prophylaxis of “no prior restraint” can prevent that harm. Politicians cannot be trusted to act altruistically when their own political interests are at stake. This wise suspicion was the basis of the “no content censorship” firewall.

Thanks to Justice Douglas and the other liberal first amendment lions of the high court, that firewall is still in place. Only the US Senate remains as a bulwark against the first stages of its dismantlement.

If there is one litmus test for service on the US Supreme Court, it is the free speech firewall. Subject to Kagan’s under oath, credible repudiation of her University of Chicago free speech.


The full text of Kagan’s law review article is posted at —

Please forward this article to your friends, correspondents and to your US Senator

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