May 12, 2010
- A d v e r t i s e m e n t
Last month New York Times legal writer Adam Liptak said two recent Supreme Court cases “suggest that the Roberts Court is prepared to adopt a robustly libertarian view of the constitutional protection of free speech.” Elena Kagan, President Obama’s nominee to replace retiring Justice John Paul Stevens, was on the losing side in both.
As solicitor general, of course, Kagan has an obligation to defend federal laws against constitutional challenges. But her pro-censorship positions went beyond the call of duty. Together with some of her academic writings, her arguments in these cases provide grounds to worry that she will be even less inclined than Stevens, who has a mixed First Amendment record, to support freedom of speech.
Defending a 1999 federal ban on depictions of animal cruelty, Kagan boldly asked the Supreme Court to recognize a new category of speech that, along with such historical exceptions as defamation, incitement, and obscenity, is entirely outside the scope of the First Amendment. “Whether a given category of speech enjoys First Amendment protection,” she wrote, “depends upon a categorical balancing of the value of the speech against its societal costs.”
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