Who Gets the Gag? Elena Kagan's First Amendment Problem

One of the narratives that’s emerged in the media’s shallow examination of Elena Kagan’s record and temperament suggests that the Supreme Court nominee is a centrist who has built a career on working with both sides and finding common ground. A Monday Washington Post headline was typical: “For Supreme Court nominee Elena Kagan, a history of pragmatism over partisanship.”

But Kagan’s centrism is a lot like that of the man who nominated her—all rhetoric and no substance. Many voters fell for Candidate Barack Obama’s talk of post-partisanship. Millions of Americans have since been roused to the reality of a president who seeks, among other things, to radically redistribute to the government their hard-earned income. 
Americans must likewise wake up to a Supreme Court nominee who displays a disturbing eagerness to redistribute to the government their hard-earned constitutional free speech rights. Or, to put it bluntly, she is willing to allow the use of government force to silence citizens.

Kagan is a First Amendment scholar who has written several law journal articles on the free-speech right. In “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine,” she argued that the Supreme Court should focus on government’s motives—not the actual effect of a law—as “the most important factor” when deciding First Amendment cases. She conveys a tolerance for “redistribution of speech” when the government deems that the speech is based on “neutrally conceived harms.”

In another article, titled “Regulation of Hate Speech and Pornography After R.A.V,” she writes, “I take it as a given that we live in a society marred by racial and gender inequality, that certain forms of speech perpetuate and promote this inequality, and that the un-coerced disappearance of such speech would be cause for great elation.”

We have a clue as to what Kagan’s inclination to restrict speech means in practice. As U.S. Solicitor General she argued on behalf of the federal government in the recent Citizens United Supreme Court case, which addressed government’s right to restrict constitutional free speech during an election.

President Obama this week praised Kagan’s efforts to stifle free speech in that case. Introducing Kagan as his Supreme Court nominee, he said, “she defended bipartisan campaign finance reform against special interests seeking to spend unlimited money to influence our elections.”

Not everyone shared Obama’s elation.

The court soundly rejected Kagan’s arguments in its January decision. Chief Justice John Roberts wrote:

“The 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, posters, the Internet, and virtually any other medium that corporations and unions might find useful in expressing their views on matters of public concern…First Amendment rights could be confined to individuals, subverting the vibrant public discourse that is at the foundation of our democracy.”

Writing for the majority, Justice Anthony Kennedy described the law Kagan defended as “unlawful” and an illegitimate attempt to use “censorship to control thought.”

As dean of Harvard’s law school, Kagan was no less eager to stifle free speech. She barred military recruiters from the Harvard Law School’s career office because she opposed the military’s so-called “don’t ask don’t tell” policy for homosexuals, which she called “a profound wrong—a moral injustice of the first order.”

But that’s not all. While working for the Clinton administration, she was a fierce advocate of homosexual rights, and the ACLU has credited her with shaping the administration’s hate crimes policy. Hate crime laws chill free speech rights by empowering government to accuse and prosecute people for “inciting” hate crimes by, for example, proclaiming the Biblical understanding that homosexuality is a sin.

But there is one thing that needs more discussion, according to Kagan, and that’s abortion.  Publicly and often, Kagan has criticized Rust v. Sullivan, a Supreme Court decision that upheld regulations ensuring tax dollars were not used for programs that would promote or counsel for abortion. By large numbers, Americans do not want tax payer dollars to be used for abortion, but Kagan says the regulation amounts to subsidization of “anti-abortion speech.”

The prospect of a new Supreme Court justice with such a disdain for free speech comes at exactly the wrong time—as the high court increasingly takes on crucial free speech cases. In one current case, Hastings v. Martinez, the court is considering whether California’s Hastings College of the Law violated the Constitution’s guarantee of free speech when it withdrew the Christian Legal Society’s right to be recognized as an official club on their campus.

What was CLS’s sin? It had a policy of asking prospective members to sign a statement of faith consistent with a biblical standard of sexual morality. Depending on how the court rules, universities across the nation may soon be able to force Christian student groups to admit practicing gay students and non-believers into leadership positions.

It doesn’t stop there. Americans United for Life note in their research that while Kagan was a Supreme Court clerk for Justice Marshall in 1987 she wrote a memo arguing that “all religious organizations should be off limits” from receiving federal funding to support projects authorized by the Adolescent Family Life Act (including pregnancy testing, adoption counseling and referral services, prenatal and postnatal care, educational services, residential care, child care, consumer education, etc.) because those projects are “so close to the central concerns of religion.”  Her position was rejected by the Supreme Court in Bowen v. Kendrick.

A possible bias against faith and against those who speak up for Judeo-Christian principles should be a real concern for those questioning Kagan in the days ahead. Who does Kagan believe should be silent when controversial issues enter the public square? Who gets the government’s gag?

Elena Kagan once wrote that the “fundamental lesson” of Robert Bork’s Supreme Court confirmation hearings was “the essential rightness—the legitimacy and the desirability—of exploring a Supreme Court nominee’s set of constitutional views and commitments.”
Republicans on the Senate Judiciary Committee should remind Kagan of that “fundamental lesson.” They should “explore” the nominee’s views on the First Amendment’s guarantee of free speech.

If they do, I have a strong feeling that what they discover will shatter the illusion of Kagan as a pragmatic centrist and allow the truth of her leftwing judicial philosophy to become much more apparent.