Wednesday, May 12, 2010

Kagan on the First Amendment

Mark Tapscott links to this analysis from the First Amendment Center about Kagan's views on the First Amendment. What struck me was this line from a brief from the Solicitor General's office in the case U.S. v. Stevens.
“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.”
Kagan herself didn't write the brief or argue before the Court, but she signed off on it.

This was the case decided recently concerning whether a federal law banning the production, sale, or distribution of videos depicting animal cruelty. The Court struck down the law in an 8:1 decision. The First Amendment Center points out that her views might be different from what was said in the brief since the role of an advocate and judge are quite different. Since we don't have other rulings from her it will be worthwhile for the senators to talk to her about her views on the First Amendment.

Does she really believe that there is a "Societal Cost and Benefits Clause" in the First Amendment? I've never seen that clause when I read the Amendment. That's a pretty sweeping and dangerous argument and eight Justices disagreed with that approach. Does she really believe that the federal government should have that power to determine which speech provides greater costs than benefits? Oh, wait. She and President Obama are quite proud of their stand in the Citizens United case to say that corporate speech in elections should be banned at a predetermined period before elections. So it is clear that both she and Obama support that sort of balancing test for speech. And the Democrats agree and are busy crafting a bill to try to get around the Supreme Court ruling. It's a frightening prospect to have an entire party that seems to think that the government can impose limits on political speech if they think that the costs outweigh the benefits.