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Kagan Says ‘Governmental Motive’ is Proper Focus in First Amendment Cases, Backs Limits on Speech That Can ‘Harm’
Wednesday, May 12, 2010
By Matt Cover, Staff Writer
www.cnsnews.com
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Applause for President Obama's Supreme Court nominee Elena Kagan at the White House on Monday, May 10, 2010. (AP Photo/Susan Walsh)(CNSNews.com) – Supreme Court nominee Elena Kagan said the high court should be focused on ferreting out improper governmental motives when deciding First Amendment cases, arguing that the government’s reasons for restricting free speech were what mattered most and not necessarily the effect of those restrictions on speech.
Kagan, the solicitor general of the United States under President Obama, expressed that idea in her 1996 article in the University of Chicago Law Review entitled, “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine.”
In her article, Kagan said that examination of the motives of government is the proper approach for the Supreme Court when looking at whether a law violates the First Amendment. While not denying that other concerns, such as the impact of a law, can be taken into account, Kagan argued that governmental motive is “the most important” factor.
In doing so, Kagan constructed a complex framework that can be used by the Court to determine whether or not Congress has restricted First Amendment freedoms with improper intent.
She defined improper intent as prohibiting or restricting speech merely because Congress or a public majority dislikes either the message or the messenger, or because the message or messenger may be harmful to elected officials or their political priorities.
The first part of this framework involves restrictions that appear neutral, such as campaign finance laws, but in practice amount to an unconstitutional restriction. Kagan wrote that the effect of such legislation can be taken as evidence of improper motive because such motives often play a part in bringing the legislation into being.
“The answer to this question involves viewing the Buckley principle [that government cannot balance between competing speakers] as an evidentiary tool designed to aid in the search for improper motive,” Kagan wrote. “The Buckley principle emerges not from the view that redistribution of speech opportunities is itself an illegitimate end, but from the view that governmental actions justified as redistributive devices often (though not always) stem partly from hostility or sympathy toward ideas or, even more commonly, from self-interest.”
Kagan notes, however, that such “redistribution of speech” is not “itself an illegitimate end,” but that government may not restrict it to protect incumbent politicians or because it dislikes a particular speaker or a particular message.
The U.S. Supreme Court (AP File Photo/Evan Vucci)She argued that government can restrict speech if it believes that speech might cause harm, either directly or by inciting others to do harm.
Laws that only incidentally affect speech are constitutional, Kagan said, because the government’s motive in enacting them is not the restriction of First Amendment freedom but the prohibition of some other – unprotected – activity.
She argues in the piece that a law banning fires in public places is not unconstitutional, even if it means that protesters cannot burn flags in public. A law outlawing flag burning protests, however, would be, because the motive is to stop a particular protest.
Kagan also argued that the Supreme Court should not be concerned with maintaining or protecting any marketplace of ideas because it is impossible for the court to determine what constitutes an ideal marketplace, contending that other types of laws, such as property laws, can also affect the structure of the marketplace of ideas and that a restriction on speech may “un-skew” the market, rather than tilt it unfavorably.
“If there is an ‘overabundance’ of an idea 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 ‘un-skew,’ rather than skew, public discourse,” Kagan wrote.
Instead, the Supreme Court should focus on whether a speaker’s message is harming the public, argued Kagan in her article.
While Kagan does not offer an exhaustive definition of ‘harm,’ she does offer examples of speech that may be regulated, such as incitement to violence, hate-speech, threatening or “fighting” words.
The government, she concludes, may not express its disfavor with an opinion or speaker by burdening them with restrictions or prohibitions, unless it can show that their speech is causing some type of public harm.
“The doctrine of impermissible motive, viewed in this light, holds that the government may not signify disrespect for certain ideas and respect for others through burdens on expression,” Kagan wrote. “This does not mean that the government may never subject particular ideas to disadvantage. The government indeed may do so, if acting upon neutral, harm-based reasons.”
Kagan says that government is also prohibited from treating two identically harmful speakers differently. To do so, she argues, would be to violate what she views as the principle of equality -- making the unequal restriction unconstitutional.
“But the government may not treat differently two ideas causing identical harms on the ground that thereby conveying the view that one is less worthy, less valuable, less entitled to a hearing than the other,” she wrote. “To take such action -- in effect, to violate a norm of ideological equality -- would be to load the restriction of speech with a meaning that transcends the restriction's material consequence.”
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Disgusting. Absolutely disgusting views in this article.
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In her article, Kagan said that examination of the motives of government is the proper approach for the Supreme Court when looking at whether a law violates the First Amendment. While not denying that other concerns, such as the impact of a law, can be taken into account, Kagan argued that governmental motive is “the most important” factor.
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Typical left wing tyrant.
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In other words SHE will determine what words incite violence.I wonder if she would say the words spwed out on MSNBC which are hatefull spurs violence or if Rush Limbaughs words incite violence.Why do I think MSNBCs words would be protected and Rushs' not.
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No wonder Obama picked this freak.
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why does everyone gets so upset with college articles? she may believe that stuff, she may not. that's why it's not a supreme court of 1 person. a lot of the time a thesis and articles are not written necessarily about what you truly believe but about what you can argue for and against. University is about exploring ALL ideas both good and bad because without understanding of the bad how can we truly know what is good? Perhaps this article gave her a distinct insight into free speech and the role of government that she would otherwise not have had had she been limited to 3333 approved articles i.e. robot bullsh*t with no freedom of expression and freedom to debate and learn about anything you wish.
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KC - you are so clueless its not even funny. She wrote this in 1996, not college.
Additionally, do you know any 1st amendment case law jurisprudence? No. So STFU with things you have no idea about.
She is a tyrant and "governmental motive" is definately NOT something that the court should ever take into account in these cases.
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why does everyone gets so upset with college articles? she may believe that stuff, she may not. that's why it's not a supreme court of 1 person. a lot of the time a thesis and articles are not written necessarily about what you truly believe but about what you can argue for and against. University is about exploring ALL ideas both good and bad because without understanding of the bad how can we truly know what is good? Perhaps this article gave her a distinct insight into free speech and the role of government that she would otherwise not have had had she been limited to 3333 approved articles i.e. robot bullsh*t with no freedom of expression and freedom to debate and learn about anything you wish.
Hmmm...I've always written papers with my ideas clearly expressed.
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So? Aren't we all always learning new ideas making new arguments, discovering new things? It's for an intellectual law review so it's a college type paper. You don't write a Danelle steele and get into the law review. I have ZERO problem with people discussing differing view points for some reason you do. Why is that? Why would you like everyone to believe the same thing all the time? As a lawyer surely you must know that differences are what makes this country great and the ability to openly argue and debate them is also a great freedom we have. Why are you trying to take that away? It seems to me you have an issue with anyone who seeks out information that you don't agree with, whether it is for research purposes or pure human interest. Just because someone reads or writes something does not believe that it is completely what they believe. Someone could write a paper on capitalist economic policy and still be a marxist at heart and vice versa. Like i said if we never discovered the different view points we would be a rather one dimensional society and much less free that we are now.
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Hmmm...I've always written papers with my ideas clearly expressed.
Good for you. Not everyone does. Sometimes it's about theory and discovering a different view point, in law i would imagine this would be an asset. As she has gone pretty far i would imagine it has been. I'd also like to add that people change, viewpoints change. I've known people in college who were once very left leaning and very much for redistribution of wealth who then go out into the real world and become what's mine is mine people. Just because someone writes about something 14 years ago does not mean one still believes whole heartily in what was written. If they ever did in the first place. I've known a lot of people who write papers on issues they couldn't care less about but they do it because it gets them published and because it's sometimes easier to take have a neutral stance before writing about contentious issues.
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And it shows you where she is coming from, which is more government control over speech.
If you are ok with that than just say so.
We dont need news approaches tot he constitution. We need to uphold what is there, not look to ivory tower freaks like obama, Kagan, et al to define it for what they want.
We have a process to change the constitution if you dont like it.
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So? Aren't we all always learning new ideas making new arguments, discovering new things? It's for an intellectual law review so it's a college type paper. You don't write a Danelle steele and get into the law review. I have ZERO problem with people discussing differing view points for some reason you do. Why is that? Why would you like everyone to believe the same thing all the time? As a lawyer surely you must know that differences are what makes this country great and the ability to openly argue and debate them is also a great freedom we have. Why are you trying to take that away? It seems to me you have an issue with anyone who seeks out information that you don't agree with, whether it is for research purposes or pure human interest. Just because someone reads or writes something does not believe that it is completely what they believe. Someone could write a paper on capitalist economic policy and still be a marxist at heart and vice versa. Like i said if we never discovered the different view points we would be a rather one dimensional society and much less free that we are now.
So,if an author of a book like THE BELL CURVE was nominated to the supreme court,you would have no problem with that.By the way,Obama fillibusterd Alito and wanted to fillibuster Roberts based on what?
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Good for you. Not everyone does. Sometimes it's about theory and discovering a different view point, in law i would imagine this would be an asset. As she has gone pretty far i would imagine it has been. I'd also like to add that people change, viewpoints change. I've known people in college who were once very left leaning and very much for redistribution of wealth who then go out into the real world and become what's mine is mine people. Just because someone writes about something 14 years ago does not mean one still believes whole heartily in what was written. If they ever did in the first place. I've known a lot of people who write papers on issues they couldn't care less about but they do it because it gets them published and because it's sometimes easier to take have a neutral stance before writing about contentious issues.
You make that sound like a bad thing. 333 never said about everybody thinking the same, I do think some college papers should be looked at to see where those ideas transpire and to see if that person has changed.
Do you think she has changed from that point of view? I guess we will soon see.
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And it shows you where she is coming from, which is more government control over speech.
If you are ok with that than just say so.
We dont need news approaches tot he constitution. We need to uphold what is there, not look to ivory tower freaks like obama, Kagan, et al to define it for what they want.
We have a process to change the constitution if you dont like it.
So you're against anyone having a different viewpoint than the status quo? Even if that viewpoint is not necessarily their true belief now and perhaps ever? You think we should just cancel anyone's nomination on the basis of dissent in an academic setting?
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KC - do you understand that the constitution is basically a contract between the govt and the people as to what the govt cant do?
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You make that sound like a bad thing. 333 never said about everybody thinking the same, I do think some college papers should be looked at to see where those ideas transpire and to see if that person has changed.
Do you think she has changed from that point of view? I guess we will soon see.
I'm not saying it's a bad thing at all. I guess we will see.
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KC - do you understand that the constitution is basically a contract between the govt and the people as to what the govt cant do?
Yes and it allows people to question it, debate it and discuss anything relating to it under it's very first amendment. Whether that is for or against any issue. But you would rather that be taken away, rather that we have robots who all believe the same thing and never think of alternate view points. Sad really. You would prefer we didn't evolve as humans i imagine, but that we stay the same always.
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And it shows you where she is coming from, which is more government control over speech.
If you are ok with that than just say so.
We dont need news approaches tot he constitution. We need to uphold what is there, not look to ivory tower freaks like obama, Kagan, et al to define it for what they want.
We have a process to change the constitution if you dont like it.
It actually sounds like she's advocating less governmental control over speech.
The article takes segments of her article out of context to present a distorted view of what she's actually saying.
Basically, she's saying the government should not be allowed to censor ideas, but things like threatening to kill someone or yelling "Fire!" in a crowded movie theater (which are already illegal) should be restricted.
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I am arguing that the government should NEVER be given more power over speech or censorship or ability to regulate speech under the 1st amendment.
You love the nanny state, I get it.
And no, I dont respect anyone whose views differ than my own on this issue.
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I am arguing that the government should NEVER be given more power over speech or censorship or ability to regulate speech under the 1st amendment.
This is exactly what she argues in that paper, too.
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No she is not, she is arguing that the "governments' motive" should be of primary importance, not the effect of the law.
That means that so long as the govt comes up with some justification for the law, it can be justified provided the motive is correct. Do you realize how dangerous that is?
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No she is not, she is arguing that the "governments' motive" should be of primary importance, not the effect of the law.
That means that so long as the govt comes up with some justification for the law, it can be justified provided the motive is correct. Do you realize how dangerous that is?
If a woman falsely accused you of rape, do you think you should have the right to sue her in a civil trial?
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Al what the *uck does that have to do with what Kagan is proposing in her article?
I don't think most of you grasp how important the marketplace of ideas is and why allowing the government to legislate in its own interest rather than in the interest of preserving that marketplace is so outrageous and offensive to the 1st amendment.
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GW - if you are a lib marxist - the government regulating free speech is agreat thing.
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Al what the *uck does that have to do with what Kagan is proposing in her article?
I don't think most of you grasp how important the marketplace of ideas is and why allowing the government to legislate in its own interest rather than in the interest of preserving that marketplace is so outrageous and offensive to the 1st amendment.
Al what the *uck does that have to do with what Kagan is proposing in her article?
I don't think most of you grasp how important the marketplace of ideas is and why allowing the government to legislate in its own interest rather than in the interest of preserving that marketplace is so outrageous and offensive to the 1st amendment.
She is QUITE SPECIFICALLY defending the marketplace of ideas and railing AGAINST the idea of legislating in the interest of the government or for a particular idea.
The type of speech she is saying should be restricted is the type of harmful speech that is already restricted. Speech like accusing others of crimes they did not commit. 333 has already stated that he thought women who falsely accused men of rape should be prosecuted. So, he obviously understands and endorses the concept of harmful speech being restricted by the government. Once you get past the sensationalistic headline, that appears to be the crux of her argument- that the government cannot and should not try to censor or restrict the exchange of ideas, but that some speech is indefensibly and illegally harmful.
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She is QUITE SPECIFICALLY defending the marketplace of ideas and railing AGAINST the idea of legislating in the interest of the government or for a particular idea.
The type of speech she is saying should be restricted is the type of harmful speech that is already restricted. Speech like accusing others of crimes they did not commit. 333 has already stated that he thought women who falsely accused men of rape should be prosecuted. So, he obviously understands and endorses the concept of harmful speech being restricted by the government. Once you get past the sensationalistic headline, that appears to be the crux of her argument- that the government cannot and should not try to censor or restrict the exchange of ideas, but that some speech is indefensibly and illegally harmful.
The problem with that is the left,led by people like Bill Clinton,believe Rush Limbaugh is a cause for violence.Clinton blamed Oklahoma city on Rush Limbaugh fanning the flames of hate.Again,the left wants to be able to deem what is harmful speech and what isnt.
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If a woman falsely accused you of rape, do you think you should have the right to sue her in a civil trial?
That has nothing to do with this.
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That has nothing to do with this.
It has everything to do with this.
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The problem with that is the left,led by people like Bill Clinton,believe Rush Limbaugh is a cause for violence.Clinton blamed Oklahoma city on Rush Limbaugh fanning the flames of hate.Again,the left wants to be able to deem what is harmful speech and what isnt.
She's not Bill Clinton.
Furthermore, without reading the entire paper, it sounds like she is trying to explain why certain speech that is already illegal is justified rather than convince anyone that more types of speech should be illegal. It's a scholarly paper ,not a ruling.
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No it doesnt. If you have a private cause of action against someone in civil court, it is based on common law law principles, not govt statute.
What Kagen is arguing for is that when the govt passes a law restricting free speech, the SC should take into account the "governmental motive" in its analysis as to whether the law meets constituional scrutiny.
That completely shifts the burden in terms of how law is considered and intimates that so long as the govt as a good motive behind passing a law restricting free speech, that it can be upheld.
No thanks.
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No it doesnt. If you have a private cause of action against someone in civil court, it is based on common law law principles, not govt statute.
What Kagen is arguing for is that when the govt passes a law restricting free speech, the SC should take into account the "governmental motive" in its analysis as to whether the law meets constituional scrutiny.
That completely shifts the burden in terms of how law is considered and intimates that so long as the govt as a good motive behind passing a law restricting free speech, that it can be upheld.
No thanks.
I posed that question to you using civil trial- as opposed to jail time- as an example because I wanted you to answer honestly. If a woman publicly accused you of a crime as serious as rape, and if the circumstances aligned themselves properly, you would almost certainly exercise any legal remedies at your disposal.
That was just one overbroad example- there are tons of other much more subtle examples that reasonably support what she is saying. You shouldn't be able to yell "Fire!" in a movie theater because of the potential stampede it could cause. You can't legally give a former employee a false negative reference because of the harm it would cause to their potential livelihood. Etc, etc.
Her argument doesn't shift any burden- it's always been that way.
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Not true at all. In your case of the false reference, you dont need a govt law to pursue that claim. Something liek that is based on common law, not statute
What she is arguing for is what the SC will assess in determining whether or not a law infringing on free speech can be upheld.
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She's not Bill Clinton.
Furthermore, without reading the entire paper, it sounds like she is trying to explain why certain speech that is already illegal is justified rather than convince anyone that more types of speech should be illegal. It's a scholarly paper ,not a ruling.
SHE IS A LIB!!!!They are all the same.Thats why the tea party people are demonised when they havent done ONE THING wrong,but according to libs,they are dangerous.THATS the type of speech this little dyke would ban.
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I think you know that was just an example... but fine, here are a few more.
-not spraypainting "Slut" on your ex-girlfriend's car
-urinating in the lobby of a courthouse as a sign of political protest
-filming a 90-mph car chase for an independent film on public streets without a permit or proper safety precautions
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SHE IS A LIB!!!!They are all the same.Thats why the tea party people are demonised when they havent done ONE THING wrong,but according to libs,they are dangerous.THATS the type of speech this little dyke would ban.
Strong argument
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Strong argument
You're really gonna mock his argument while throwing out 3rd grade examples yourself?
Every example you've posted is nothing more than de minimus, already deemed not to fall under the protection of the 1st Amendment. Why not try some more sophisticated examples and explain the "harm" issue?
How about why a group can protest at a funeral calling a soldiers death a great thing is protected but burning a cross should not be protected? How about the city of St. Paul law? How about right wing radio talk show hosts (an example she uses in her paper)? How about preventing a protest march on the basis that it may incite a riot?
Now how is "harm" defined? How is "material harm" defined? What should be the litmus? Where is the line that the amount of harm is so great that the government can intervene? Why can flag burning be prevented under the argument that it could cause material harm, such as in an enclosed space, a valid argument, whilst the emotional harm it could cause veterans (still very material) invalid? She wrestles with the issue in her own paper and doesn't seem to be sure.
But no, you keep on mocking Billy whilst firing off some more grade school examples. ::)