My friend Jay Gaskill is a licensed attorney and former public defender of Alameda County in the San Francisco Bay Area. He has one of the sharpest minds I’ve ever encountered. His assessment of Obama’s SCOTUS nominee Elena Kagan should be given attention and weight.
By Jay B Gaskill, Attorney at Law – May 12, 2010
I am now persuaded, subject only to a searching inquiry in which the nominee convincingly testifies to the contrary, that E. Kagan cannot be safely confirmed as our next Supreme Court Justice.
Based on the latest available information about the nominee’s judicial philosophy, reasonable legal minds (mine included) are persuaded that as a Supreme Court Justice, Ms. Kagan can be expected to work tirelessly to secure the votes to implement a radical change in the high court’s approach to free speech cases.
If Kagan is confirmed and ever secures a majority position, her proposed change in First Amendment law would be truly dangerous. The notion of the government dipping into speech contents in the service of speech “diversity” would have the practical effect of burying the First Amendment as a robust firewall against government regulation of free speech.
This may well be President Obama’s Bork moment.
THE NEWS: Washington Examiner
As Solicitor General, one’s positions are determined by the client, in Kagan’s situation, the current administration. But the chief counsel for the government before the Supreme Court does get to select the arguments on which the government relies.
This one is disturbing to all of us who retain a strong commitment to freedom of speech and a concomitant suspicion of the regulation of speech by government.
“As an illustration why, consider this quote dug up by the First Amendment Center’s David L. Hudson, who found it in a government brief signed by Kagan in United States 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.”
“The case concerned a statute that made it criminally unlawful to depict animal cruelty. The Court rejected Kagan’s reasoning, but had the justices accepted her assertion, it would have effectively repealed the First Amendment’s protection of speech and replaced it by granting government the authority to decide what speech should be permitted.”
Was Solicitor General Kagan’s argument an anomaly, or a red flag?
THE TELLTALE LAW REVIEW
After reading a revealing University of Chicago Law Review article written by SCOTUS nominee Kagan, I am convinced it is the Red Flag:
Finally, Elena Kagan is on the record.
In 1996 she authored an article for the University of Chicago Law Review (https://www.jstor.org/pss/1600235 ), “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine.”
Although Ms. Kagan owns the copyright, we may now presume that her acceptance of the SCOTUS nomination constitutes permission to study the entire piece. I note that several of the websites that have referenced this discovery are overwhelmed with traffic.
I’ve just posted a copy of the PDF file of her entire article at this link: https://jaygaskill.com/KaganArticle.pdf
So sue me.
THE KAGAN LAW REVIEW
The Executive Summary
Law review articles are typically lengthy and hopelessly obscure for the lay reader. They tend to set out a critical analysis of a line of cases representing a particular legal doctrine. But read carefully, such articles can reveal the underlying philosophy of the writer.
Kagan’s article, a review of the Supreme Court’s free speech cases, is no exception. Ms. Kagan’s real views, not all that well concealed, represent a radical break from a strong tradition of robust First Amendment-grounded protection of free speech. If she ascends to the high court and ever begins writing for the majority on free speech cases, there will be two large free speech eras: Before Kagan and after Kagan. […]
Trust me when I say that only a few radicals, among whom we can evidently now count Ms. Kagan, are willing to “castigate” the idea that the First Amendment should forbid the government from restricting the speech of some elements of our society in order to enhance the relative voice of others.
On the contrary, inviting the government into the role of “speech content referee” is profoundly dangerous.
Let’s take a moment to review some other key excerpts from Kagan’s 1996 law review article, written at the University of Chicago when her colleague, Barack Obama, was serving as a Lecturer:
“I argue, notwithstanding the Court’s protestations in O’Brien, that First Amendment law, as developed by the Supreme Court over the past several decades, has as its primary, though unstated, object the discovery of improper governmental motives. The doctrine comprises a series of tools to flush out illicit motives and to invalidate actions infected with them. Or, to put the point another way, the application of First Amendment law is best under-stood and most readily explained as a kind of motive-hunting.” P 414
Please note the context here. We’re not talking about how one goes about protecting government speech. No, we are talking about how one goes about – as a Supreme Court justice – goes about upholding government restrictions on otherwise free speech. Now, under the Kagan analysis a restriction of private speech for an “impermissible motive” would result in the protection of speech…no problem there. But what about upholding the restriction of otherwise protected speech (reading the First Amendment as it was actually drafted) because a Justice approves of the government motive?
Does the prospect send chills up and down your spine? It should.
[…]So we are invited by Ms. Kagan to seriously entertain the notion, here, that SCOTUS should regulate speech content (i.e., act in the role of a benign censor) in order to “unscew” some “imbalance”. Those of us who are looking with great concern at an ideologically driven Federal Communications Commission with content-regulations designs on the broadcast industry and ambitions to begin a camel’s-nose project to regulate internet communications have reason to be alarmed at Ms. Kagan’s juridical approach to speech regulation.
Read the rest of Mr. Gaskill’s analysis of Kagan HERE.
Jay Gaskill, a California attorney, served as the Alameda County Public Defender from 1989 through 1999. His profile is available at www.jaygaskill.com/Profile.pdf