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

Why the Supreme Court Decision Allowing Direct Corporate Spending on Elections is Correct

Good for the US Supreme Court for overturning the 20-year ban on direct corporate spending on elections.  Last time I checked, the First Amendment - "Congress shall make no law ... abridging the freedom of speech, or of the press" - contained no language excluding corporations from its protections.

Justice Sonia Sotomayor, no great champion of the First Amendment, predictably voted with the minority - that is, to uphold the ban.  President Obama, apparently also no great friend of freedom of speech, said the decision gives a "green light" to special interests.   Predictably, Keith Olbermann just finished ranting about the decision.  Fortunately his guest, constitutional law professor Jonathan Turley, tried to set Olbermann straight.

Contrary to Senator Schumer of New York, the decision has "not just predetermined the winners of next November's elections."   The decision is not political.  It favors neither party.  It favors freedom.  (I'm a lifelong Democrat, who voted for Obama.)

Justice Stevens, who wrote the minority, dissenting opinion, thinks the First Amendment was not intended to apply to corporations, which  "are not human beings. They can't vote and can't run for office."  But  by that reasoning, The New York Times and The Washington Post would have been entitled to no First Amendment protection when Richard Nixon tried to prevent them from publishing the Pentagon Papers.

It's hard, I know, to support the right of people or organizations to speak and write and buy ads when you utterly and vehemently disagree with their positions.  But that is precisely what the First Amendment was designed to support and protect.   Because it protects the expression not just of opinions you may detest, but your own most cherished opinions, when others may find them detestable.

Why One Strike Against the First Amendment Should Rule Sotomayor Out of the Supreme Court

As many of you know, I was disappointed by President Obama's nomination today of Appellate Judge Sonia Sotomayor to replace David Souter on the U.S. Supreme Court. As a lifelong advocate of the First Amendment and its protections of freedom of speech and press, and a critic therefore, of judges who do anything to dilute and undermine its protections, I wrote back at the beginning of this month that Sotomayor's Anti-First Amendment Decision Should Disqualify Her for Supreme Court. The decision in question was the one that Sotomayor's 3-judge Federal Second Court of Appeals made in New York last May, when it failed to uphold Avery Doninger's claim that her First Amendment rights had been violated when her high school prohibited her from running for Senior Secretary, after she had posted on her off-campus Live Journal blog that school officials were "douchebags" for canceling an event.

I recognize that there are some who think Avery was justly punished, and/or the school did not violate her First Amendment rights when it punished her.

But I'd like to now address a different objection to the problem I have with Sotomayor - one which in fact has been the most frequently raised on my blogs and status reports on Facebook, etc.

The objection is as follows: Should we let just one mistake count against a Supreme Court appointment and confirmation of a judge who has otherwise been excellent in all of her opinions? This certainly seems like a reasonable point, given that we require three strikes to be out when at bat in baseball, and we give people all kinds of second chances in life.

But I think that one strike against the First Amendment should indeed disqualify Judge Sotomayor's appointment to the Supreme Court.

First, before I explain why, let me just stipulate, for the purpose of this explanation, that Sotomayor's decision in Doninger was wrong, and all of her other decisions right. I understand that people may disagree with both parts of that stipulation, but let's proceed here as if they were right.

I maintain that Sotomayor would still be a dangerous appointment to the Supreme Court.

She made a decision on the Appellate Court that did not strongly support the First Amendment. The Appellate is itself a higher court, just one level below the U.S. Supreme Court. Why appoint someone who made even one mistake there, in a position that in this situation is in effect an audition, a farm league, for the big time? Isn't performance on the Appellate Court the best possible gauge of performance on the Supreme Court? Are not the stakes on the Supreme Court just too high, too lasting, to take a chance on an Appellate judge with even just one bad decision?

If that is the case, then the only reason we could excuse a bad decision on the First Amendment would be if we don't hold the First Amendment to be what it is - not the Tenth, the Fourth, or even the Second Amendment, but the First or most primary amendment for protection of our freedoms. An amendment, moreover, whose protections for us are eroding daily, with the FCC levying millions of dollars of fines, and Congress calling out for FCC regulation of cable, etc. All of that can hang in the balance with this appointment.

I have used baseball metaphors several times here, and let me say that it grieves me not to support Sotomayor, given that she is such as fervent Yankee fan. (Hey, I was born in the Bronx, too, proudly teach there at Fordham University, and am a lifelong Yankees fan.) Just as it grieves me not to support a woman and Latina for the Supreme Court.

But that's just not enough.

This does not make Sotomayor a bad person, or, even a bad judge across the board. But it does make her not the best person to appoint for the rest of her life to one of nine positions on a Supreme Court already dominated by Justices who don't care much about the First Amendment and the rights of kids.

Sotomayor's Anti-First Amendment Decision Should Disqualify Her for Supreme Court

According to Sam Stein in the Huffington Post, Sonia Sotomayor is "the odds-on favorite" to be chosen by Barack Obama to fill retiring Justice David Souter's seat on the U.S. Supreme Court. She now sits on the U.S. Court of Appeals of the Second Circuit in New York City. She is regularly described as liberal and a judicial activist - fine in my book - and it would good to have a first Hispanic and another woman on the Supreme Court.

But she has one major, very bad decision on free speech and press to her discredit, which should give everyone who values these freedoms in our society serious cause for concern about Sotomayor's possible nomination to the High Court.

The decision came from Sotomayor's Second Circuit Court last May, regarding Lewis Mills High School student Avery Doninger. While running for Senior Class Secretary, Ms. Doninger found reason to object to the school's cancellation of a "jamfest" event, and characterized those who scotched the event as "douchebags" on her off-campus LiveJournal blog (she also characterized a school official in that same blog posting as getting "pissed off"). The school officials, in turn, took umbrage, prohibited Avery from running for Class Secretary, and disregarded the plurality of votes she received, anyway, as a write-in candidate. Avery sued the school officials, and the Federal District Court supported the school. Avery appealed to Sotomayor's Second Circuit Court.

After acknowledging the Supreme Court's 1969 Tinker decision, which held that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," Sotomayor's Court proceeded to affirm the District Court's ruling - that is, Sonia Sotomayor and her colleague justices upheld the high school's right to punish Doninger for her off-campus speech. Their reasoning was that schools have an obligation to impart to their students "shared values," which include not only the importance of free expression but a "proper respect for authority".

"Proper respect for authority" ... is this what our democratic society and freedom is based upon? Last time I checked, I thought our democracy and freedom were predicated on the principle that all people have a right to express their opinions, which must certainly include disrespect for authority, if actions by the authority - such as canceling a school event such as "jamfest" - are at issue.

Or as Constitutional scholar and law-professor Jonathan Turley put it about this decision last year, "The continual expansion of the authority of school officials over student speech teaches a foul lesson to these future citizens. I would prefer some obnoxious speech than teaching students that they must please government officials if they want special benefits or opportunities."

It is not exaggerating events to say that our society hangs in the balance with the appointment of Souter's replacement to the Supreme Court. A powerful, corrective revolution is underway, with Obama's election as President, and the Democrats about to obtain a 60-seat majority in the U.S. Senate. But an adverse Supreme Court can stop and undo a lot of that.

David Souter was a surprise to the Republicans who appointed him and worked for his confirmation. His vote made a difference on the side of progressive and humane issues in many a Supreme Court decision.

We cannot afford or risk a Souter in reverse with this new appointment - a Justice who seems to have a progressive record, but who turns out to have an insufficient passion for protecting and strengthening the freedoms that make our country great.

I hope Sonia Sotomayor's name is taken off the list.

See also full text of Sotomayor's decision ... further discussion on Andy Thibault's Cool Justice Report ... and my 2005 Flouting of the First Amendment

Added after Obama's Nomination of Sotomayor: Why One Strike Against the First Amendment Should Rule Sotomayor Out of the Supreme Court