Kagan’s troubling First Amendment record

We read:

"Early this month President Obama selected Solicitor General Elena Kagan as his replacement for retiring Justice John Paul Stevens on the United States Supreme Court.

In the last session alone no fewer than 10 cases involving First Amendment claims made it to the Court’s docket.... An examination of several of the law review articles she has written and the First Amendment cases in which she has involved herself as solicitor general reveals a consistent and inexplicable hostility toward free speech.

Here’s the takeaway. Under her view of “free speech,” Hillsdale College, a small liberal arts school in Michigan and crisis pregnancy centers throughout the nation that receive no funds might find themselves subjected to speech restrictions due to a perceived hostility on their part to women and minorities.

Nevertheless, Planned Parenthood and presumably Harvard would be allowed to operate free from any restrictions on pro-abortion or gay rights advocacy while because they receive public funds.

Next, there is her 1995 University of California, Davis law review article on speech codes in which she asserts one way to defend a Stanford University speech code would be to consider it “a ban on the subcategory of fighting words that must pose the dangers associated with fighting words generally.”

Finally there is a 1996 Chicago Law review article on the First Amendment in which Kagan theorizes that the Courts -- instead of focusing on the First Amendment’s goal of ensuring that individual expression and the marketplace of ideas is encouraged -- should focus on the government’s motives in adopting regulations that impact speech. If their goals were neutral then the impact on speech wouldn’t necessarily be protected.

As demonstrated by her record, Kagan clearly believes the scope of the First Amendment should be narrower than it is today. She consistently devalues political speech and freedom of expression in favor of government control.

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