The RED FLAG
A “Speech Diversity Nanny?”
By Jay B Gaskill, Attorney at Law
(The former Alameda County, Ca, Public Defender)
I am now persuaded, subject only to a searching inquiry in which the nominee convincingly testifies to the contrary, that E. Kagan cannot be safely confirmed as our next Supreme Court Justice.
Based on the latest available information about the nominee’s judicial philosophy, reasonable legal minds (mine included) are persuaded that as a Supreme Court Justice, Ms. Kagan can be expected to work tirelessly to secure the votes to implement a radical change in the high court’s approach to free speech cases.
If Kagan is confirmed and ever secures a majority position, her proposed change in First Amendment law would be truly dangerous. The notion of the government dipping into speech contents in the service of speech “diversity” would have the practical effect of burying the First Amendment as a robust firewall against government regulation of free speech.
This may well be President Obama’s Bork moment.
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.
This one is disturbing to all of us who retain a strong commitment to freedom of speech and a concomitant suspicion of the 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 The Court rejected Kagan’s reasoning, but had the justices accepted her assertion, it would have effectively repealed the First Amendment’s protection of speech and replaced it by granting government the authority to decide what speech should be permitted.”
Was Solicitor General Kagan’s argument an anomaly, or a red flag?
THE TELLTALE LAW REVIEW
After reading a revealing University of Chicago Law Review article written by SCOTUS nominee Kagan, I am convinced it is the Red Flag:
Finally, Elena Kagan is on the record.
In 1996 she authored an article for the University of Chicago Law Review (http://www.jstor.org/pss/1600235 ), “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine.”
Although Ms. Kagan owns the copyright, we may now presume that her acceptance of the SCOTUS nomination constitutes permission to study the entire piece. I note that several of the websites that have referenced this discovery are overwhelmed with traffic.
I’ve just posted a copy of the PDF file of her entire article at this link: http://jaygaskill.com/KaganArticle.pdf
So sue me.
THE KAGAN LAW REVIEW
The Executive Summary
Law review articles are typically lengthy and hopelessly obscure for the lay reader. They tend to set out a critical analysis of a line of cases representing a particular legal doctrine. But read carefully, such articles can reveal the underlying philosophy of the writer.
Kagan’s article, a review of the Supreme Court’s free speech cases, is no exception.
Ms. Kagan’s real views, not all that well concealed, represent a radical break from a strong tradition of robust First Amendment-grounded protection of free speech. If she ascends to the high court and ever begins writing for the majority on free speech cases, there will be two large free speech eras:
Before Kagan and after Kagan.
“Yet a content-neutral law, no less than a content-based law, can lessen the ability to speak.” Kagan
The key obstacle to government abuse of this most precious of all our freedoms is a simple, robust speech-protection firewall: The government should be closely restricted to time, place and manner regulation of all speech. Inquiry into the contents of speech in order to decide whether to regulate it (i.e., permit some speech and not other speech) is off the table.
“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
Ms. Kagan evidently wants contents-regulation of speech back on the table. Her new model: The government promotion of “speech diversity” using contents-analysis as a tool. This is one door opened too far, the breach in a time-honored firewall.
It is the nanny state empowered to become the “speech nanny”, all in the name of “diversity”.
“In what has become one of the most castigated passages in modern First Amendment case law, the Court pronounced in Buckley v Valeo that “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.” Kagan
Trust me when I say that only a few radicals, among whom we can evidently now count Ms. Kagan, are willing to “castigate” the idea that the First Amendment should forbid the government from restricting the speech of some elements of our society in order to enhance the relative voice of others.
On the contrary, inviting the government into the role of “speech content referee” is profoundly dangerous.
KAGAN’S CHICAGO ARTICLE UNPACKED
Let’s take a moment to review some other key excerpts from Kagan’s 1996 law review article, written at the University of Chicago when her colleague, Barack Obama, was serving as a Lecturer:
“I argue, notwithstanding the Court’s protestations in O’Brien, that First Amendment law, as developed by the Supreme Court over the past several decades, has as its primary, though unstated, object the discovery of improper governmental motives. The doctrine comprises a series of tools to flush out illicit motives and to invalidate actions infected with them. Or, to put the point another way, the application of First Amendment law is best under-stood and most readily explained as a kind of motive-hunting.”
Please note the context here. We’re not talking about how one goes about protecting government speech. No, we are talking about how one goes about – as a Supreme Court justice – goes about upholding government restrictions on otherwise free speech. Now, under the Kagan analysis a restriction of private speech for an “impermissible motive” would result in the protection of speech…no problem there.
But what about upholding the restriction of otherwise protected speech (reading the First Amendment as it was actually drafted) because a Justice approves of the government motive?
Does the prospect send chills up and down your spine? It should.
Later in the article, Kagan criticizes the time-honored notion in First Amendment law that the government must resolutely refrain from going into contents analysis when deciding speech issues because that is an open door to government content control which is censorship.
In this next passage she makes the argument that the government might do that very thing in the interests of “balance”.
“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.l9 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.2”
So we are invited by Ms. Kagan to seriously entertain the notion, here, that SCOTUS should regulate speech content (i.e., act in the role of a benign censor) in order to “unscew” some “imbalance”.
Those of us who are looking with great concern at an ideologically driven Federal Communications Commission with content-regulations designs on the broadcast industry and ambitions to begin a camel’s-nose project to regulate internet communications have reason to be alarmed at Ms. Kagan’s juridical approach to speech regulation.
Then on page 430, Kagan really begins to open the door.
“The key principle with respect to motive is that the government may not limit speech on grounds of mere disapproval, no matter whose or how widely shared. This principle leaves untouched many reasons to restrict expression; in this Article, I call these reasons ‘harm-based’ and contrast them to the “ideological” reasons I have just discussed.”
Again on page 433
…the concept of impermissible motive I have described refers to the government in its capacity as regulator of private expression. A second and, for my purposes, more important question concerns the coherence of the distinction I have drawn between motives based on harm and motives based on ideology-
At page 435 she continues to conflate the harm-based and ideology based first amendment theories. Have patience, here – there is a method at work.
Hostility against speech (or sympathy toward it) may lead the government or public to overassess (or underassess) the harm speech causes. Likewise, hostility against speech (or sympathy toward it) may lead the government or public to tolerate a lesser (or greater) degree of the harm than it otherwise would. In either case, hostility (or sympathy) is doing some of the work in the decision to impose a limit on speech. The desire to suppress for its own sake-the tendency to count challenge or opposition itself as harm-is impermissibly entering into the calculation.66
Continued patience is required here, as Kagan’s argument is developed slowly, cloaked in an ongoing commentary on the Supreme Court’s various approaches to its First Amendment cases. See page 445
Yet a content-neutral law, no less than a content-based law, can lessen the ability to speak; indeed, a content-neutral law can do so more dramatically. To use my earlier example, 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.
Now her focus sharpens and becomes ever more revealing. Page 446:
First, a doctrinal structure based on the problem of distortion seemingly would subject to heightened scrutiny whatever content-neutral rules fall much more heavily on one idea than others. Suppose, for example, that only Democrats, and not Republicans, use billboards to advertise; then, the skewing effect of a general ban on billboards would match the skewing effect of a law specifically barring Democrats from this forum. To put the point more generally, content-neutral laws often have content-based effects-and sometimes these are quite dramatic. A jurisprudence concerned with distortion should treat these cases with the utmost seriousness. But current doctrine all but ignores the distorting effects of content-neutral law.93
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.
We are introduced to the notion of the government as a benign “Content Nanny” (my characterization, of course, not Kagan’s) at page 449.
Indeed, this model of the First Amendment might well command (not merely tolerate) the use of content discrimination in some circumstances.
As to Nanny administrated licensing, note then discussion on page 459.
As a conceptual matter, content-based actions as well may improve as mutilate the community’s thinking process. So too, then, with the standardless licensing schemes that facilitate such actions. If there is reason to think that as a practical (rather than a conceptual) matter standardless licensing more often will distort than improve public debate, that reason relates to the fear of illicit motive on the part of licensing officials.23 The real question, then, concerns governmental motive; it is whether a rule against standardless licensing will identify and reduce the incidence of improperly motivated administrative decisions.
Having worked up to it, Kagan takes on First Amendment holy writ at page 464.
In what has become one of the most castigated passages in modern First Amendment case law, the Court pronounced in Buckley v Valeo that “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment… .”39
Then, at page 466…
The question that remains concerns the basis of this principle: what view of the First Amendment accounts for the Court’s refusal to allow, by means of restrictions, the redistribution of expression?
On page 467, I read, just under the surface, the Speech-Nanny-in-waiting, thinking out loud to herself, “Please open the door. We’ll be nice. Promise!”
“The question that remains concerns the basis of this principle: what view of the First Amendment accounts for the Court’s refusal to allow, by means of restrictions, the redistribution of expression?”
Finally, on page 478, we learn that it’s to be a “Speech Diversity Nanny”.
“The question remains, however, why the Court should treat as especially suspicious content-neutral regulations of speech-such as the regulations in Buckley-that are justified in terms of achieving diversity.151”
It fairly appears to this lawyer, that for SCOTUS nominee Kagan, the “question remains” only because she hasn’t yet been confirmed.
Thereafter, she can be expected to work tirelessly to secure the votes to implement what could later become known as the “Kagan Doctrine”, a line of cases that ultimately would bury the First Amendment as a robust firewall against government regulation of free speech.
Jay Gaskill, a California attorney, served as the Alameda County Public Defender from 1989 through 1999. His profile is available at www.jaygaskill.com/Profile.pdf
Read Jay B Gaskill’s Lost Souls Coffee Shop, an allegory for the human condition. Google ‘jay b gaskill/lost souls coffee shop’ .
And read Jay Gaskill’s new thriller, The Stranded Ones. More on the Policy Think Site at http://www.jaygaskill.com/TourTheStrandedOnes.pdf .