Concerns about Kagan's First Amendment Position

President Obama has for the second time nominated someone to the US Supreme Court whose views on the First Amendment and its role in our society give cause for concern.

Unlike Sonia Sotomayor, who's Appellate Court ruling in the Doninger case held that First Amendment protections did not extend to high school students writing criticism of their school officials, off-campus, Elena Kagan has never served as a judge.  This, in itself, is not a problem - neither had Hugo Black or William O. Douglas before their appointments to the Supreme Court, and they were the greatest champions of the First Amendment in the 20th century.   But Kagan's opinions on First Amendment matters, expressed in at least one article, show that she may be closer to Sotomayor than Black and Douglas on the First Amendment.

On the one hand, as James Doty points out in a generally supportive piece in Salon, Kagan wrote in an article that the Supreme Court made the "correct decision"when it struck down in a 5-4 vote a law that prohibited mutilating the U.S. flag.   In the same article, Kagan also cautioned law enforcement about "hastily" cracking down on "disfavored speech" to maintain public order.   Those views are certainly heartening to Americans who view the First Amendment as the cornerstone of our freedoms.

On the other hand, however, Jonathan Turley cites with concern what Kagan wrote in another article about how to combat pornography and hate speech:  "new solutions ought to be debated and tested in a continuing and multi-faceted effort to enhance the rights of minorities and women, while also respecting core principles of the First Amendment."  Turley wonders what such a "nuanced view of the First Amendment" portends for Kagan's Supreme Court rulings.   To put a finer point on this, I would say that the best, most effective way of supporting the "core principles of the First Amendment" is not to find ways of working around them on specific issues, but employ those principles as a guide and injunction against government censorship of any kind, whether the target is pornography (nobody's business, especially not the government's, if consenting adults are involved) or the most heinous hate speech (not the government's business, either, but certainly a matter of social concern).

There is never a guarantee of how anyone will rule after ascending to the Supreme Court, but if ever there was a need for careful, substantive questioning of a nominee's views in Senate hearings,  Kagan and her views of the First Amendment would be it.  Unfortunately, the Sotomayor hearings were typically big on political maneuvering and low on substance.  The best questions came from Senator Al Franken.   I hope he can rise even further to the occasion with Kagan.

One wonders why Obama is now two for two on First Amendment myopia in his appointments to the Supreme Court.  I'm beginning to think - actually, I've been thinking for a while - that Obama has a certain kind of near-sightedness or tone-deafness about communication and its crucial role in our democracy.

Just this past Sunday in an address at Hampton University, Obama remarked that "with iPods and iPads, and Xboxes and PlayStations ... information becomes a distraction, a diversion, a form of entertainment, rather than a tool of empowerment, rather than the means of emancipation."  This is not a call for censorship per se, but it shows a distressing ignorance of the value of what I call new new media in education and the growth of knowledge.   Neither is entertainment antithetical to education and empowerment, as the boost to literacy engendered by everything from Harry Potter to texting demonstrates.

It's difficult to appreciate the centrality of the First Amendment to our democratic society when your knowledge of media and communication is based on popular misconception not facts.  But to the matter at hand - I hope that Elena Kagan is carefully questioned in the Senate, and, if she is confirmed, that she expresses this appreciation for the First Amendment on the Court.


11-min podcast discussion of Kagan, Obama, and the 1st Amendment