On being nominated to the Supreme Court by President Barack Obama, Elena Kagan spoke of "why I love the law so much. … It keeps us safe, it protects our most fundamental rights and freedoms and … it is the foundation of our democracy."
Were I on the Senate Judiciary Committee, in my first round of questioning, I would focus on her record regarding the First Amendment's foundation of our individual liberties -- the right to criticize our government. And surely many Americans are exercising this right of free speech against the Obama administration.
Last September, Kagan, then Obama's solicitor general, was arguing before the High Court in Citizens United v. Federal Election Commission, on the government's case for limits to corporations' political speech -- newspaper, television and radio ads, among other support of candidates for federal office.
During the oral argument, Chief Justice John Roberts asked Kagan how far the government could censor corporations' political speech: "If you say you are not going to apply (censorship) to a book (about the candidates), what about a pamphlet?"
This is how the former Dean of the Harvard Law School and a former clerk of Justice Thurgood Marshall, an ardent protector of free speech, answered: "I think a pamphlet would be different. A pamphlet is pretty classic electioneering." The government, therefore, could penalize such corporate speech.
I have long been reporting on the need for more Americans, very much including members of Congress, to learn how we became the United States of America, including the impact of such pre-Revolution pamphlets as Tom Paine's "Common Sense" and "The Crisis"; John Dickinson's "Letters from a Farmer in Pennsylvania"; and Samuel Adams' "The Rights of the Colonists," among others of his pamphlets that contributed to John Adams saying: "Without the character of Samuel Adams, the true history of the American Revolution can never be written."
Responding to Solicitor General Kagan's need of an education in civics, Chief Justice Roberts, in his concurring opinion in the Citizens United case, said: "The (Obama) government urges us in this case to uphold a direct prohibition on political speech. It asks us to embrace a theory of the First Amendment that would allow censorship not only of television and radio broadcasts, but of pamphlets."
I know that a solicitor general is required to provide the Supreme Court with the positions of the administration that put her in office -- but to this extent? Once on the Court, how solicitous will she be to the president who elevated her career and renown? I am assuming she knows that Tom Payne was a pamphleteer.
I'd also like to know how a Supreme Court Justice Kagan would react to those in the Obama administration who urge more "media diversity" -- their poorly disguised attempt to return to the Fairness Doctrine, whereby the Federal Communications Commission could revoke the license of a radio or TV station that was not being "fair" in its distribution of balanced views in its programming of political speech. Last year, the Obama FCC set up an Advisory Committee for Communications on the Digital Age. (Rush Limbaugh, be prepared.)
Also last year, Senate Rules Committee Chairwoman Dianne Feinstein, D-Calif., declared: "there is a responsibility to see that both sides, and not just one side, of the big public questions of the day are aired … with some modicum of fairness."
Who is to exercise this responsibility? She wanted to "look at the legal and constitutional aspects of bringing back the Fairness Doctrine" in some form.
Or as Barack Obama pithily put it: "You can't just listen to Rush Limbaugh and get things done." (Both quotes are in "Shut Up America!" by Brad O'Leary, WND Books, 2009).
Here is Kagan on government involvement in speech in her 1996 article in the University of Chicago Law Review: "Private Speech, Public Purpose: The Role of Governmental Motive in First American Doctrine." From the article, as quoted on May 12 of this year by Seton Motley, director of Communications of the conservative Media Research Center:
"Kagan wrote: If there is an 'overabundance' of an idea in public discourse 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 'unskew,' rather than skew (distort) public discourse." What on Earth does that mean?
Translated by Motley, what Kagan was actually saying: "So if talk radio suffers from an 'overabundance' of conservative voices, government action to 'un-skew' this particular public discourse is just fine by her."
Is this being fair to Kagan's views on what some of her critics have called her support of "government 'redistribution of speech?'" A member of the Senate Judiciary Committee should ask about her revisions of the First Amendment during the confirmation hearing. It probably won't be a Democratic senator.
For an ominous example of those revisions, Kagan, speaking before the Court defending a 1999 federal ban on depictions of animal cruelty, said: "Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs" (Jacob Sullum, Reason.com, May 12). What a boon to all kinds of censors!
If James Madison were on the Judiciary Committee, would he have voted for Elena Kagan?