07.13.2010 0

A Tale of Two Kagan’s

By Robert Romano

Before the Supreme Court, Solicitor General Elena Kagan, on behalf of the Obama Administration, in the recent Citizens United decision that lifted restrictions on independent expenditures on electioneering political speech, argued that political pamphleteering and political movies were not covered by the First Amendment, but that political books were.

“I think … a pamphlet would be different,” said Kagan to Chief Justice John Roberts, who in his concurring opinion wrote, the government “asks us to embrace a theory of the First Amendment that 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.”

Kagan’s inconsistencies on the First Amendment do not end there. Ironically, Kagan argued almost twenty years earlier that the debatably offensive recording “As Nasty as You Wanna Be” by 2 Live Crew could not be banned by a local jurisdiction, as it was protected by the First Amendment.

Now, 2 Live Crew’s Luther Campbell is weighing on the debate of Kagan’s nomination. Here was his take on the Kagan nomination, as published by the Miami New Times:

“I’m happy to see that Barack Obama nominated Elena Kagan to the U.S. Supreme Court. Even if he doesn’t win the next election, by installing two intelligent, nonpartisan women as justices, the president has already cemented his legacy. Sonia Sotomayor and Kagan (if she is confirmed) will be on the bench long after he has left the Oval Office. In my opinion, Kagan is the perfect person for the job.

“In 1989, Broward County Sheriff Nick Navarro banned the sale of our album, As Nasty as They Wanna Be, and a federal judge backed him. We appealed. The next year, Kagan, who was working at a Washington, D.C. law firm, wrote a brief that argued the album “does not physically excite anyone who hears it, much less arouse a shameful and morbid sexual response.” In other words, my homegirl Kagan was saying people could not be aroused by the lyrics “’cause my ***** on bone” or “me so horny, me **** you long time.” She realized these words did not meet the standard of appealing to prurient interests. She did a great job fighting on 2 Live Crew’s behalf, which lets you know that Kagan is not easily swayed by public opinion or by politicians with their own hidden agendas.

“She is not going to let any person or group tell her what is right or wrong. Kagan will judge each case based on the law of the land. She has demonstrated she can protect the Constitution by doing the fine work she did to protect 2 Live Crew’s freedom of speech.”

The amazing thing is that Kagan believes political speech — which the Founders intended to be protected — is dangerous and can be restricted because of the potential for corruption. Perhaps if Citizens United had hired Mr. Campbell as a consultant developing the musical content for Hillary: The Movie, it would have passed Kagan’s First Amendment litmus test.

Robert Romano is the Senior Editor of ALG News Bureau.

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