Government censors don't belong on Supreme Court

When the Senate Judiciary Committee begins confirmation hearings June 28 for Supreme Court nominee Elena Kagan, the senators should take her at her word.

Back in the 1990s, in a review of a book about the Supreme Court confirmation process, Kagan bemoaned the hearings for Ruth Bader Ginsburg and Stephen Breyer as "official lovefests," appearing to long for the days when people like Robert Bork and Clarence Thomas underwent high-tech lynchings at the hands of the senators.

"When the Senate ceases to engage nominees in meaningful discussion of legal issues," Kagan wrote, "the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public. Whatever imperfections may have attended the Bork hearings pale in comparison with these recent failures."

When it is her turn, Kagan should be thoroughly engaged in discussion of legal issues to see how firmly her feet are planted on the bedrock of the First Amendment, which has recently been buoyed by a couple of Supreme Court rulings that found Kagan, as the administration's lawyer, arguing for censorship.

Was she merely advocating for her client or advancing legal theories she embraces?

Hints of Kagan's squishiness on the First Amendment can be found in a University of Chicago Law Review article she wrote in 1996 titled "Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine."

In the article, she obsessively and repeatedly harps on a need for balanced free speech and a diversity of viewpoints, as though the government has some fundamental role in assuring many different opinions are fairly aired.

"If what is essential, to recall (philosopher and free-speech proponent Alexander) Meiklejohn's phrase," Kagan wrote in the 100-page article, "is that 'everything worth saying shall be said,' then the First Amendment often would permit -- indeed require -- the reallocation of speech opportunities. The realm of public expression may have too much of some kinds of speech, too little of others; some speakers may drown out or dominate their opposite numbers. Self-conscious redistribution of expressive opportunities seems the most direct way of correcting these defects and achieving the appropriate range and balance of viewpoint."

She seems to be advocating a role for government as traffic cop for speech, when it should stay out of the fray altogether.

Kagan supported what she called a "weighing of the scope of the restriction on speech against the importance of the asserted state interest." So, some speech is subject to a balancing test against the government's concerns?

She revisited this weighing of state interests in her brief as solicitor general, arguing in support of a federal law that criminalized depictions of animal cruelty. This was in the case of U.S. v. Stevens, who was charged with a federal felony for selling videos of dogfights that took place in Japan, where the practice is said to be legal.

In a brief submitted by Kagan, the government argued, "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." Sounds familiar.

In the court's resulting opinion, Chief Justice John Roberts squared up on this balancing test concept and singled out that very passage for an unusually strong upbraiding.

"As a free-floating test for First Amendment coverage, that sentence is startling and dangerous," Roberts wrote. "The First Amendment's guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it."

Kagan did not fare any better arguing in support of the McCain-Feingold Act, which restricted corporations and unions from spending money on campaign commentary just prior to an election.

In court, she engaged in legal banter with several justices over just what the law prohibited, even arguing that pamphlets could be banned by the law. "A pamphlet is pretty classic electioneering, so there is no attempt to say that (the law) only applies to video and not to print. It does …"

Tom Paine's "Common Sense" and "The Crisis" were pamphlets. The Federal and Anti-Federalist papers were pamphlets. They are icons of the concept of a free press.

In a 5-4 ruling, the court forcefully rejected Kagan's arguments.

This was the ruling President Obama denounced in his State of the Union address, saying it should be reversed by legislation.

Packing the court with censors like Kagan is another route.

Thomas Mitchell is editor of the Review-Journal and writes about the role of the press, the First Amendment and access to public information. He may be contacted at 383-0261 or via e-mail at Read his blog at