In a 1996 paper [in the University of Chicago Law Review] "Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine," Kagan argued it may be proper to suppress speech because it is offensive to society or to the government.
That paper asserted First Amendment doctrine is comprised of "motives and … actions infested with them" and she goes so far as to claim that "First Amendment law is best understood and most readily explained as a kind of motive-hunting."
Kagan's name was also on a brief, United States V. Stevens, dug up by the Washington Examiner, stating: "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."
In short, the government may elect to censor or not to censor, depending on a juggling act between the “value” of speech and its potential “societal costs,” performed by a government official whose decision is completely arbitrary and governed by his “motives,” which a court may or may not decide are “appropriate.” And from where does the government derive its “balancing” powers? Not the Constitution.
Who knows? Kagan may actually respect the First Amendment. In which case, she would gladly approve of the executive branch abridging it by decree, but not Congress.
It is a measure of the recidivist character of the mainstream media that it absolutely refuses to identify the political suasion of Kagan, except to vociferously deny that suasion when it is identified outside the MSM. Instead, the left/liberal pundits and columnists dwell on her feistiness, her devotion to her career, her allegedly indeterminate political leanings, and so forth, in a campaign of ambiguity and puffery. Her suasion is their suasion. Don’t expect the Democrats or their allies in the MSM to ever admit they comprise a collective Freddy Krueger. In the heavily made-up and lavishly garbed image reflected in their mirror, they see Jane Addams.
The MSM chooses to not reach the conclusion because a socialist selected Kagan. She is in line to sit permanently on the Court where she can help mete unconscionable damage to the republic and the freedom of its citizens. They refuse to entertain the question: Why would Obama choose anyone else but a fellow advocate of “hope and change”? The MSM does not accept the designation of Obama and his administration as socialist; they agree with Obama that the term is “vile” and “demonizing.” Ergo, it can’t be true, and anyone who says otherwise is guilty of character assassination.
It would be impractical to discuss all of Kagan’s positions and utterances here without endeavoring to write a book. The New York Times, bless its liberal/left heart, however, has provided a handy reference guide to Kagan’s positions and views, a guide that substantiates any and all charges against the Court nominee that she would be a leftist judicial activist on the bench.
Kagan’s record shouldn’t deceive or confuse anyone. After all, Lenin was also a pragmatist. He and his fellow communists proclaimed the “New Economic Policy” that was intended to rescue the Russian economy from communist depredations. As soon as that relaxation of controls put two or three crumbs of bread on Russian dinner plates instead of one, down came the controls again.
It is easy to identify Kagan’s political suasion because all of her positions are, if not overtly socialist, then pragmatically statist. She is for disarming Americans, she is for “selective” censorship, and she worked with the Clinton administration on the first round of attempted socialized medicine, she probably helped to craft the “master agreement” that put the tobacco companies under a special federal thumb. She is no friend of freedom.
The first step is to accept the premise that Obama would not have nominated anyone who advocated freedom of speech, individual rights, the sanctity of property, and limited government. That’s a given. He would nominate someone amenable to his statist agenda and at the same time present that person as “not radical.” She is a rationalizing pragmatist who also advocates the expansion of executive powers.
Reading her papers on cases and issues (especially the one on government “motivation“), one can’t immediately determine what her philosophy of law is, or where she stands on individual rights or on the Constitution. It’s much like trying to zero in on a target when it keeps moving in concentric circles. But there are key statements in her academic papers, and which she made throughout her career, that can simplify the task. That task is necessary, even though it means reading large chunks of her academic and career statements.
By way of exhibiting her pretzel-like thinking and expository style, try digesting this chunk from her Law Review article, "Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine.” In a seemingly endless screed on whether or not government may censor out of perceived or potential causes of “harm” or if it seeks to “advantage” or “disadvantage” the subjects or expressers of speech, she writes:
The narrower (speech-related) principle inheres in the broader; both are aspects, so the argument goes, of the appropriate relationship between the government and individuals within a liberal society.
The second kind of nonconsequentialist account for the prohibition of ideological motive relates more exclusively to expression, emphasizing the place of such activity in a democracy. On this view, the prohibition of ideological motive, and its concomitant principle of equality, lies at the core of the First Amendment because it lies at the core of democratic self-government. The democratic project is one of constant collective self-determination; expressive activity is the vehicle through which a sovereign citizenry engages in this process by mediating diverse views on the appropriate nature of the community. Were the government to limit speech based on its sense of which ideas have merit, it would expropriate an authority not intended for it and negate a critical aspect of self-government. Democracy demands that sovereign citizens, through each generation, retain authority to evaluate competing visions and their adherents-to decide which ideas and officials merit approval. Hence democracy bars the government from restricting speech (as it also bars the government from limiting the franchise) on the ground that such activity will challenge reigning beliefs or incumbent officials. The government must treat all ideas as contingent, because subject to never-ending popular scrutiny. On this view, the prohibition of certain motives again serves as a way to delineate the proper sphere of authority, hereby preventing a democratic state from contravening key principles of self-government and thereby undermining its foundation.
This is as bad as reading Stanley Fish, a professor of law at Florida International University, excoriate the First Amendment with his verbal embroidery, or Laurence Tribe, a confessed plagiarist and professor of law at Harvard, pronounce on the fluxing value of freedom of speech. One of Tribe’s “best” students happened to be Barack Obama. Leftists Tribe and Cass Sunstein, who now heads the Office of Information and Regulatory Affairs, not only vetted her Law Review article, but are cited numerous times by Kagan throughout as authorities on constitutional interpretation.
Readers may have read of deconstructionism in literature, in which “texts” are explored for their “tensions” and “contradictions,” apart from their literal meaning. The patron saint of this school of literary analysis is Jacques Derrida. Kagan’s paper is an example of deconstructionism in law. Its patron saint is Oliver Wendell Holmes, Jr., of “shouting fire in a theater” fame. What difference is there between a Holmesian “clear and present” danger in someone’s exercise of freedom of a speech that may lead to a “harm” forbidden by Congress, and the “value of a speech” as opposed to its “societal costs”? Kagan cites Holmes occasionally in her paper, in an appearance of amused dissension. But note 257 of her paper is in tandem with Holmes’ thinking:
As I explain, the distinction between motive-based analysis and effects-based analysis remains all-important for purposes of constructing (and explaining) First Amendment doctrine.
Holmes himself was a judicial “that was then, this is now” pragmatist who was against a strict interpretation of the Constitution.
Holmes declared that the law should develop along with society and that the 14th Amendment did not deny states a right to experiment with social legislation. He also argued for judicial restraint, asserting that the Court should not interpret the Constitution according to its own social philosophy.
As long ago as 1881, Holmes wrote in The Common Law:
"The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, and even the prejudices which judges share with their fellow-men, have had a good deal more to do than syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.”
Fundamental ideas are out, no longer relevant to the “necessities of the time” or the “prevalent moral and political theories.” Kagan certainly possesses, together with her “gang,” an intuition of public policy, which is unbridled statism.
Kagan is an advocate of “racial and gender” equality (of the legislative kind), and writes that she would be elated if speech that allegedly perpetuated their inequality “disappeared.”
Kagan is in solid with Obama, with the Democrats, and with the “extreme“ left-wing of the Democrats. She taught law at the University of Chicago with Barack Obama, and has been his long-time collaborator and political supporter. Her donations to Obama and his party are public record. It is reported that between 2000 and 2008, Kagan contributed $12,550 to Democrats, more than half of it going to Obama's various campaigns. She contributed to Rahm Emanuel’s run for the Senate.
The Weekly Standard, a conservative magazine, found (as I was not able to) a copy of Kagan’s senior year Princeton University thesis, "To the Final Conflict: Socialism in New York City, 1900-1933," in which she laments the ineptitude of the Socialist Party in New York politics. An excerpt goes:
"In our own times, a coherent socialist movement is nowhere to be found in the United States. Americans are more likely to speak of a golden past than of a golden future, of capitalism's glories than of socialism's greatness. Conformity overrides dissent; the desire to conserve has overwhelmed the urge to alter. Such a state of affairs cries out for explanation. Why, in a society by no means perfect, has a radical party never attained the status of a major political force? Why, in particular, did the socialist movement never become an alternative to the nation's established parties?"
The story is a sad but also a chastening one for those who, more than half a century after socialism's decline, still wish to change America. Radicals have often succumbed to the devastating bane of sectarianism; it is easier, after all, to fight one's fellows than it is to battle an entrenched and powerful foe. Yet if the history of Local New York shows anything, it is that American radicals cannot afford to become their own worst enemies. In unity lies their only hope."
Michael Goldfarb, author of the article, remarks:
Obviously, one imagines that Kagan's views have evolved significantly over the last three decades, but given Obama's stated aversion to radicalism, it's certainly worth noting the radical roots of the nation's top lawyer.
Obviously, her views have not so much “evolved significantly” as expanded to encompass the whole Alinskyite/Obama policy of “hope” for “change.” They certainly have not mellowed and become less strident. The “socialist radicals” have moved from New York City to Washington. Kagan’s “roots” have only grown deeper, and are part of a vast interlocking root system that includes those of Bill Ayers, David Axelrod, Cass Sunstein….and Barack Obama.