Bob Ward
The Travis Monitor
May 31, 2010

The nomination of Elena Kagan to the Supreme Court is the latest salvo in President Obama’s war on the Constitution. In this case the target is our First Amendment rights to free speech.

There has been a lot of commentary about her booting the military recruiters off the campus at Harvard and less about a far more important problem with Kagan – her anti-constitutional view of freedom of speech. Put simply, she just doesn’t believe in it.

While the Constitution says “Congress shall make no law . . . abridging the freedom of speech or of the press,” Kagan says Congress can make such a law, provided its motives are pure. In a 1996 article in the Univ. of Chicago Law Review entitled, “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine,” Kagan said that determining the government’s motive is “the most important” consideration when deciding whether a law restricting speech or press violates the First Amendment.

Restricting speech would be a violation only if it were done just because the message or the messenger may be harmful to elected officials or their political priorities.

Even more disturbing is her view of the free marketplace of ideas. Kagan doesn’t believe in that either. In that same article she argues that the Supreme Court – on which she is about to sit – should not be concerned with protecting the free marketplace of ideas because, she wrote, “it is impossible for the court to determine what constitutes an ideal marketplace.”

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Also in the article, she contradicts herself by asserting that the government is capable of determining an ideal marketplace of ideas and should manage the marketplace to achieve it. “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 ‘un-skew,’ rather than skew, public discourse,” Kagan wrote. She refers to this government micro-management of speech and press as “redistribution of speech.”

So, according to Kagan, the government can and cannot decide what is the ideal state of public debate. And it is permitted by our constitution to limit the expression of certain ideas if it determines those ideas are being expressed too often, or too loudly or too effectively or too whatever the government decides.

This bizarre interpretation of the First Amendment would allow the government to silence talk radio if it determines that it is dominated by conservatives resulting in an “overabundance” of conservative ideas being expressed.

Kagan’s notion about an “overabundance” of some ideas could also be applied to the Internet, another target of the Obama administration. Federal Communications Commission Chairman Julius Genachowski was recently rebuffed by a Federal appeals court which said his agency had no authority to exert the kind of control he was seeking. With Kagan on the Supreme Court Genachowski could appeal that ruling with some expectation of a different outcome.

This is an expectation that Obama appears to share. He was highly critical of the Supreme Court when it ruled that a corporation has a right under the First Amendment to express a political opinion. In that case, Kagan, as Solicitor General of the United States, contended that Congress could constitutionally prohibit corporations from publishing pamphlets that advocate the election or defeat of a candidate for federal office.

Responding to her claim, Chief Justice John Roberts wrote that her interpretation of the First Amendment, “would allow censorship not only of television and radio broadcasts, but of pamphlets, posters, the Internet, and virtually any other medium that corporations and unions might find useful in expressing their views on matters of public concern.”

It could even, Roberts continued, “empower the Government to prohibit newspapers from running editorials or opinion pieces supporting or opposing candidates for office, so long as the newspapers were owned by corporations — as the major ones are.”

Kagan on the Supreme Court would be a threat to the most fundamental liberties the Constitution was written to protect – the right to speak our minds and express our opinions. It is hard to imagine any right more central to the notion of representative government.

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