Kagan Says ‘Governmental Motive’ is Proper Focus in First Amendment Cases, Backs Limits on Speech

Supreme Court nominee Elena Kagan said the high court should be focused on ferreting out improper governmental motives when deciding First Amendment cases, arguing that the government’s reasons for restricting free speech were what mattered most and not necessarily the effect of those restrictions on speech.

Kagan, the solicitor general of the United States under President Obama, expressed that idea in her 1996 article in the University of Chicago Law Review entitled, “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine.”

In her article, Kagan said that examination of the motives of government is the proper approach for the Supreme Court when looking at whether a law violates the First Amendment. While not denying that other concerns, such as the impact of a law, can be taken into account, Kagan argued that governmental motive is “the most important” factor.

In doing so, Kagan constructed a complex framework that can be used by the Court to determine whether or not Congress has restricted First Amendment freedoms with improper intent.

She defined improper intent as prohibiting or restricting speech merely because Congress or a public majority dislikes either the message or the messenger, or because the message or messenger may be harmful to elected officials or their political priorities.

The first part of this framework involves restrictions that appear neutral, such as campaign finance laws, but in practice amount to an unconstitutional restriction. Kagan wrote that the effect of such legislation can be taken as evidence of improper motive because such motives often play a part in bringing the legislation into being.

“The answer to this question involves viewing the Buckley principle [that government cannot balance between competing speakers] as an evidentiary tool designed to aid in the search for improper motive,” Kagan wrote. “The Buckley principle emerges not from the view that redistribution of speech opportunities is itself an illegitimate end, but from the view that governmental actions justified as redistributive devices often (though not always) stem partly from hostility or sympathy toward ideas or, even more commonly, from self-interest.”

Kagan notes, however, that such “redistribution of speech” is not “itself an illegitimate end,” but that government may not restrict it to protect incumbent politicians or because it dislikes a particular speaker or a particular message.

The U.S. Supreme Court (AP File Photo/Evan Vucci)She argued that government can restrict speech if it believes that speech might cause harm, either directly or by inciting others to do harm.

Laws that only incidentally affect speech are constitutional, Kagan said, because the government’s motive in enacting them is not the restriction of First Amendment freedom but the prohibition of some other – unprotected – activity.

She argues in the piece that a law banning fires in public places is not unconstitutional, even if it means that protesters cannot burn flags in public. A law outlawing flag burning protests, however, would be, because the motive is to stop a particular protest.

Kagan also argued that the Supreme Court should not be concerned with maintaining or protecting any marketplace of ideas because it is impossible for the court to determine what constitutes an ideal marketplace, contending that other types of laws, such as property laws, can also affect the structure of the marketplace of ideas and that a restriction on speech may “un-skew” the market, rather than tilt it unfavorably.

“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.

Instead, the Supreme Court should focus on whether a speaker’s message is harming the public, argued Kagan in her article.

While Kagan does not offer an exhaustive definition of ‘harm,’ she does offer examples of speech that may be regulated, such as incitement to violence, hate-speech, threatening or “fighting” words.

The government, she concludes, may not express its disfavor with an opinion or speaker by burdening them with restrictions or prohibitions, unless it can show that their speech is causing some type of public harm.

“The doctrine of impermissible motive, viewed in this light, holds that the government may not signify disrespect for certain ideas and respect for others through burdens on expression,” Kagan wrote. “This does not mean that the government may never subject particular ideas to disadvantage. The government indeed may do so, if acting upon neutral, harm-based reasons.”

Kagan says that government is also prohibited from treating two identically harmful speakers differently. To do so, she argues, would be to violate what she views as the principle of equality -- making the unequal restriction unconstitutional.

“But the government may not treat differently two ideas causing identical harms on the ground that thereby conveying the view that one is less worthy, less valuable, less entitled to a hearing than the other,” she wrote. “To take such action -- in effect, to violate a norm of ideological equality -- would be to load the restriction of speech with a meaning that transcends the restriction's material consequence.”

And who will be the arbitor of what speech is "harmful" Elena? Will Obama appoint a Free Speech Czar to determine that? Maybe we can ration free speech. Perhaps set up free speech death panels? If a Republican SCOTUS nominee said something like this, his nomination would have to be withdrawn for the hue and cry that would erupt among Dems and their echo chamber news media.

“...arguing that the government’s reasons for restricting free speech were what mattered most and not necessarily the effect of those restrictions on speech.”
If that comment, alone, doesn’t tube her nomination then nothing will.

I agree. . . not possible to be more diametrically opposed to what real freedom of speech and the American way of life is all about.

A filibuster would not be a waste to block somebody who doesn’t believe in preserving our Constitution. It is absurd that someone whe believes such would be nominated.

When Law is changed, it is difficult if not impossible to reverse. The one exception after much resistance was prohibition. Abortion, (for example) when the majority is against it being paid and endorsed by our government, and still it is expanded again. Bush had some restrains passed and made law against “late term abortions”, but it is no more.

Scary stuff is happening. And who knows what is behind closed doors?

God help us in our day, in Jesus name, amen.

Everything I have read about this woman indicates she is a flabby pile of mush, both physically and mentally. She does not articulate herself well. She seems to think she has something to say when she doesn’t. She doesn’t express originalism over “living/breathing” Constitution. The only time she appeared before the USC she made an utter fool of herself.

That said, I don’t understand what she could be quizzed on to understand if she is an acceptable justice of the USSC. I think she could make a great manager of a chain of carpet stores.

The great danger of selecting this type of sycophantic personality is that she is very obviously “moldable”. Her greatest skill appears to be to continuously elevate her own mediocrity to higher and higher office. She is a boat that floats on an ocean of PC. And so, lacking any qualities that might be found offensive, she is likley to be confirmed. And then after a period of time, with only one “boss” to supplicate to (0bama, her kissy-face pal) she will become a tool of the administration. That’s clearly their plan for her.

Sharpton, Jackson and others, look out.

Kagan is a racist.

Instead, the Supreme Court should focus on whether a speaker’s message is harming the public, argued Kagan in her article.

Who defines "harm", and who defines "public"? For that matter, who defines "is"?

If, by writing or speaking the truth, one allegedly leads others to decide they want to engage in acts which threaten those who have wronged them, has the "public" been "harmed"?

We have reached the point where people are being harmed by the illegal acts of the government, and to speak to those acts, that harm might cause other repercussions which might be considered by those in government to be harmful to their 'public'.

The only purpose of restricting speech is to protect the thieves in high office.

Somewhere, the truth should take precedence, regardless of who does not like it.

After all, is it illegal to yell "FIRE!" in a crowded theater if the theater is on fire?

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