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

cnsnews.com/ ^ | Wednesday, May 12, 2010 | Matt Cover

[day21221]

Kagan Says ‘Governmental Motive’ is Proper Focus in First Amendment Cases, Backs Limits on Speech That Can ‘Harm’ Wednesday, May 12, 2010 By Matt Cover, Staff Writer

Applause for President Obama's Supreme Court nominee Elena Kagan at the White House on Monday, May 10, 2010. (AP Photo/Susan Walsh)(CNSNews.com) – 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.”

[beethovenfan]

BORK it!!

[E. Pluribus Unum]

Let me guess.

She's a big admirer of Mao ("40-Million Murdered") Tse Tung.

[day21221]

Elena Kagan must not set on the Supreme Court

[ETL]

From David Horowitz's
FrontPageMag.com/DiscoverTheNetworks.org
PROFILE: ELENA KAGAN

• Served as President Bill Clinton's Associate White House Counsel
• Former dean of Harvard Law School
• Sought to overturn the Solomon Amendment, a law that denies federal funding to any university that bars military recruiters from its campus
• Believes that the military should open its ranks and barracks to homosexuals, without restriction
• Was appointed U.S. Solicitor General by President Barack Obama in January 2009

As an undergraduate at Princeton, Kagan wrote a senior thesis titled

"To the Final Conflict: Socialism in New York City, 1900-1933."

In the "Acknowledgments" section of her work, she specifically thanked her brother Marc, “whose involvement in radical causes led me to explore the history of American radicalism in the hope of clarifying my own political ideas.” In the body of the thesis, Kagan wrote:

"In our own times, a coherent socialist movement is nowhere to be found in the United States. Americans are more likely to speak of a golden past than of a golden future, of capitalism’s glories than of socialism’s greatness. Conformity overrides dissent; the desire to conserve has overwhelmed the urge to alter. Such a state of affairs cries out for explanation. Why, in a society by no means perfect, has a radical party never attained the status of a major political force? Why, in particular, did the socialist movement never become an alternative to the nation’s established parties?...

"Through its own internal feuding, then, the SP [Socialist Party] exhausted itself forever and further reduced labor radicalism in New York to the position of marginality and insignificance from which it has never recovered. The story is a sad but also a chastening one for those who, more than half a century after socialism’s decline, still wish to change America. Radicals have often succumbed to the devastating bane of sectarianism; it is easier, after all, to fight one’s fellows than it is to battle an entrenched and powerful foe. Yet if the history of Local New York shows anything, it is that American radicals cannot afford to become their own worst enemies. In unity lies their only hope."

Lots more on Kagan here:
http://www.discoverthenetworks.org/individualProfile.asp?indid=2398

[Genoa]

Here comes the final solution for "hate speech." Enjoy your freedom while you still can.

[RC2]

Once they start this, it will go just like taxes. They will control your speech more and more.

[relictele]

She is apparently illiterate. The First Amendment is quite easy to read and understand.

[Don Corleone]

arguing that the government’s reasons for restricting free speech were what mattered most and not necessarily the effect of those restrictions on speech.

That alone disqualifies her.

[SoCal Pubbie]

Is it just me or has there been an excess of photos of this president and his minions shot at low angles, such as the one in your post, that are designed to create a “heroic” effect?

[Lorianne]

Ends justify the means ... the bedrock of Liberal thought.

[highlander_UW]

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

So if her talking about limiting my free speech harms my rights then she should be court ordered to shut up?

[oh8eleven]

Instead, the Supreme Court should focus on whether a speaker’s message is harming the public, argued Kagan in her article.
Ah ha, for the common good, COMRADE Kagan?
The GOP better grow a set and ditch this b*tch now!

[AngelesCrestHighway]

Look at all the whack radical left libs climbing into office and closing the barn door on your freedom of speech...Revolution is in the air!!!!

[Le Chien Rouge]

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

I’ll bet Conservative Talk Radio is the subject of her article.

[pabianice]

That’s insane.

[wardaddy]

Examination of the emotives?

my my...how subjective our little busybee lesbo’s mind must be..

[AGreatPer]

Before my grandfather passed he warned me to look out for speech restrictions. He said it was one of the first things they did when he was in Germany. He said that's why I got the hell out of there while I could.

[Oldpuppymax]

But you can BET that Orrin Hatch will vote to confirm!!!

[manc]

not only is she a hard core socialist, a bit time money donor for obama, a homosexual activist but she used her position at harvard to advance her homosexuals agenda by discriminating against the military.

there is no way in hell she would be fair if a homosexual case came before her and for that reason alone she should not be voted in.
Fed up of the GOP and the media failing to point this out all because of her homosexuality