The Obama administration is not happy with the current robust protections afforded free speech in this country. And SCOTUS nominee Elena Kagan is the president’s stealth ally in this respect. Yes, if confirmed, Kagan will be just one vote of nine. But – and this is a complement to her skills – she will be a dangerous enemy of free speech.


Because Ms. Kagan is personable, persistent and very intelligent. She would be just the sort of Associate Justice who could actually persuade four malleable liberals on the High Court to bend one more freedom-protecting boundary in the service of the “greater good.” Of course, the old school liberals, like Justice William O Douglas, a free speech hawk of the first order, would be immune the blandishments of Kagan. But Justice Douglas was replaced by justice Stephens.

There is a pattern here. As the Weekly Standard author Terry Eastland put it —

“But surely there are Republicans on the Senate Judiciary Committee prepared to challenge the president by standing up for a fundamental liberty. Recall that Citizens United, a conservative nonprofit, wanted to distribute a political documentary about then-Senator Hillary Clinton, a candidate in the Democratic primaries. The Court might have ruled narrowly for Citizens United but for the concession by the government’s lawyer that campaign finance law as it had evolved through McCain-Feingold could be constitutionally enforced to ban a book with the same point of view as the video.”

[My emphasis. The government’s lawyer was Kagan and the concession was made out of honesty: It was her own view.]


Translation: Kagan and Obama are prepared to restrict political speech, print, video, electronic speech, all in the name of “fairness” and diversity”.

I just sent an explanation of Kagan’s dangerous Free Speech theory to a friend, who was trying to grasp why she, in particular, was in any way worse than any other liberal nominee. He was confused by Kagan’s “diversity” rationale, and evidently thought she must have been using it in the more familiar workplace-hiring sense.


This is a far more dangerous concept, one that strikes at the very heart of the traditional free speech firewall that has served to protect unpopular and disapproved speech for the last turbulent century.

The government control of the internet and the covert censorship of broadcast content will be fully protected if Ms. Kagan’s “speech diversity” theory ever gains traction.

I have reluctantly, but decisively concluded that Ms. Kagan’s nomination perfectly correlates with a general stealth assault on the First Amendment free speech firewall by members of this administration.

So this is not about the so-called “diversity” cases at all.

Diversity in this sense is the “good cause” of a beneficent government ever watchful of our diet and the quality of our political discourse.

It is about giving the power of censorship to the legislative branch based on a claim, made by the executive or legislative branch, that justifies censoring for a “good cause”, to wit: achieving “speech diversity” by suppressing one speech to make room for other speech. It is “soft” censorship in order to correct an imbalance of speech (in this instance as perceived through the lens of the left). Code: Not enough “diversity” being heard means too much right wing radio and internet chat. Warning to liberals: It works the other way around, too as the late great Justice William O Douglas would attest.

I now believe that this low key, but potentially catastrophic assault on free speech is close to Mr. Obama’s heart. In a May 24 Weekly Standard piece, “The Thinness of his Skin”, in the Scrapbook section, the author analyzed the President’s recent Virginia commencement address:

“But for startling insight into the mind of our 44th president, we cannot do better than his recent commencement address at Hampton University in Virginia. Most graduation speeches are predictably anodyne and tend to rely on well-worn generalities. Obama, by contrast, was refreshingly specific at Hampton: He does not like the newfangled means by which many of today’s college graduates​—or anyone, for that matter​—obtain information.

“You’re coming of age in a 24/7 media environment that bombards us with all kinds of content and exposes us to all kinds of arguments, some of which don’t rank all that high on the truth meter. With iPods and iPads and Xboxes and PlayStations—none of which I know how to work—information becomes a distraction, a diversion, a form of entertainment, rather than a tool of empowerment, rather than the means of emancipation.

‘“Some of the craziest claims can quickly gain traction,” he added, referring to talk radio and blogs.

“These well-chosen words tell us a lot about Barack Obama, and none of it good. To begin with, it is abundantly clear that Obama may well be the president with the thinnest skin since James Knox Polk, who at least had the decency to rail at his critics in the privacy of his diary. Obama is not only indignant about criticism, hostile comment, and ‘the craziest claims’ about himself and his policies: He is furious that citizens have access to different viewpoints without regulatory control. Public discourse in a free society is not a virtue in itself, according to the president; it should be a ‘tool of empowerment’ or ‘means of emancipation,’ not ‘a form of entertainment.”’

The remedy? If Justice Kagan ever commands four more votes on the High Court, some of the voices that irritate our new president will be silenced or curtailed based on the contents of their discourse.

I’ve already done an analysis of Kagan’s University of Chicago Law Review that she wrote when her colleague Barack Obama was also lecturing there.

Kagan’s nomination is about whether and when, in the name of the public good, the government – of whatever size – can legitimately censor public or private communications based on an assessment of the specific contents of a particular communication.

Much is said about whether a prospective justice can be subject to a “litmus test”. Yes. Yes. Yes. The robust protection of Free speech is the litmus test. And Kagan’s stealth nomination is the moment of truth for the friends of free speech who now sit in the US Senate.

The original and current constitutional rule, very bright line as these things go, is that – from a content-neutral point of view – the government (meaning the legislative branch) may only “regulate” (i.e. prohibit) speech based on a “time, place and manner” analysis. In one case the high court noted that there may be an inappropriate time and place to shout a false warning – “FIRE!”, especially in a crowded theater. It also crafted the so called “fighting words” exception (manner and place), and a few other very tight exceptions.

Ms. Kagan is promoting a truly radical departure, one in which the legislative branch would be permitted to act more like a newspaper editor with the power to control “balance””, by actually curtailing disfavored speech because there was too much of that POV, compared to this POV…. This is a metaphorical editor who could dictate contents on a radio station, a magazine, a paper or limit time-on-air, the distribution and number of copies, much like a politically aggressive FCC Chairperson could do for broadcast outlets.

All of this content censorship would be accomplished (in Kagan’s theory) with the “best” of motives. But the leading Supreme Court free speech cases have been founded on the view that governments cannot be trusted to evaluate speech content, except in the most extreme cases (pornography for children), because, inevitably, the in-power group will be biased against the ideas and ideologies of the out-of-power groups.

The authors of the Bill of Rights were keenly aware of Lord Acton’s caution that “power corrupts.” This core wisdom informs our “checks and balances” structure of government, the separation of powers, the limitation of powers and the bright-line clear language in the Bill of Rights, such as the government “shall make no law” abridging the freedom of speech.

Elena Kagan differs so sharply on this one issue from our whole constitutional history to date that she fully warrants the designation radical.

Any other candidate whose name has come up so far would be far better on this issue.

Free speech is one of those bedrock principles. The most liberal justices in US history remained principled defenders of free speech and against any content censorship, no matter how “trustworthy” and benign’ the alleged government purpose. Ms. Kagan’s “speech diversity” theory is truly a Red flag, one that transcends ideology.

But most of Kagan’s true views have been well hidden. We are very lucky that this piece (in theUniversity of Chicago Law Review[1]) got the attention it did. The remaining question is whether more people will pay attention.

I have apparently overestimated the “I give a s***” factor for something so essential to the preservation of our core liberties.

Thirty years ago, Kagan’s article (if not satisfactorily explained-away by the nominee) would have been an immediate DQ.

Times change but bedrock principles do not.

Jay B Gaskill

Attorney at Law

For more, go to — http://jaygaskill.com/KaganFreeSpeechLitmusTest.htm


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[1] A copy in pfd format is available on my website – http://www.jaygaskill.com/KaganArticle.pdf

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