06.14.2010 0

Elena Kagan On the First Amendment: Should the Supreme Court Go “Motive-Hunting”?

By Victor Morawski –

Should the Supreme Court go “motive-hunting”? “Yes, absolutely!” says the recent Supreme Court nominee.

Many articles have appeared discussing Elena Kagan’s troubling views on First Amendment rights and with good reason. Since the High Court will hear nearly a dozen First Amendment cases in an average year, where she stands on this critical Constitutional issue is enormously important.

While some of the articles are good, ones I have read have essentially taken a piecemeal approach to the subject — pointing out this or that unsettling thing she has said on it, peppered with isolated quotes from her writings.

I will try here to get to the heart of the matter regarding Elena Kagan and the First Amendment.

Most troubling about her views on this subject is that she would entirely shift the ground on which the Supreme Court stands to declare a challenged piece of legislation unconstitutional because it violates First Amendment freedoms — from the current objective basis of its practical, real world effects on these freedoms to a more subjective, “touchy-feely” basis centered on legislator motives.

For her, then, what makes a piece of legislation constitutional or unconstitutional is not its practical consequences but the motives of its legislative authors. As she puts it in “Private Speech, Public Purpose” the law review article where she systematically presents her position, “First amendment law … has as its primary, though unstated, object the discovery of improper governmental motives.” So, she would have the Court go on a search to “flush out illicit motives” or, to use her phrase, to go “motive-hunting” in First Amendment cases.

Never mind that this stance on the law was rejected in 1968 by the Supreme Court itself in a key case — United States v. O’Brien — where the Justices ruled that “the purpose of Congress [its motive in constructing a law]… is not a basis for declaring legislation unconstitutional.”

Undaunted by this Kagan maintains her contrary position, arguing in part that while the Court explicitly rejects her stance, it implicitly accepts it — the Court, she claims, actually decides the constitutionality of some legislation based on legislator motives, not legislative consequences.

Assessing her success at making her point is beyond the scope of what we are trying to do here. Still, we need to see that she at least thinks she has good reasons to differ with the Court’s stated position.

Now, if the constitutionality of a piece of legislation — especially First Amendment legislation — is to hinge entirely on legislator motives as Kagan claims, then obviously parsing the difference between proper and improper motives becomes of supreme importance. How then does she try to make this distinction? Answer: In a way that should cause us all alarm!

It should not alarm us that she thinks it illegitimate for a government to legally restrict the expression of some ideas simply because it dislikes the ideas themselves — for what she terms “ideological” reasons. Illegitimate governmental motives, she thinks, all fall into this category, obeying the principle, “that the government may not limit speech on grounds of mere disapproval, no matter whose or how widely shared.”

Alarming to us, however, should be the category of supposedly legitimate governmental motives for restricting free speech she terms “harm-based” motives. Unnerving is the extent for her of the “harms that the government has a legitimate interest in preventing” by reigning in free speech.

She would defend laws restricting some types of free speech not only if they were motivated by legislators to prevent actual physical harm — as laws restricting racist speech may prevent acts of race-based violence spurred on by that speech — but would defend as legitimate such legislation if it were motivated merely to prevent listeners from suffering “psychic trauma or other emotional harm.”

How restrictive could legislation stifling free speech just to prevent psychological harm actually become? And to what extent would a Supreme Court Justice Kagan go to defend its constitutionality? We may be better off not knowing.

Victor Morawski, professor at Coppin State University, is a Liberty Features Syndicated writer for Americans for Limited Government.

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