Kagan wrote that government can restrict free speech

This article describes Elena Kagan's opinion that government can restrict freedom of speech. Since Kagan has been awarded the Supreme Court nomination, hidden information has been uncovered from an article she published in the University of Chicago Law Review in 1996, entitled "Private Speech, Public Purpose: the Role of Government Motive in First Amendment Doctrine." She believes that as long as the government can show 'proper intent' in restricting freedom of speech, the restrictions stand. The problem is that the exact wording of the Constitution, "Congresss shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech..." therefore any government restriction on free speech is prohibited. Exactly from the article, Kagan saw that "government can restrict free speech if it believes that speech might cause harm, either directly or by inciting others to do harm. Laws that only incidentally affect speech are constitutional, the governments motive in enacting them is not the restriction of First Amendment freedom but the prohibition of some other - unprotected - activity. She doesn't define "harm" in the article, but she does offer examples of speech that may be regulated, such as incitement to violence, hate-speech, threatening, or "fighting" words. Her words, as compared to the Constitution, make her the most extremist nominee in the history of the Republic and poses a grave danger to the rights of all citizens. We think she is overstepping her boundaries as a nominee, and that the more hidden information that is uncovered regarding Elena Kagan and her beliefs, the more her popularity will dwindle among Americans. In Schenck v. United States, a socialist was urging young men to resist the draft during World War I by distributing flyers. He was convicted of impeding the war effort. It was felt that this was a violation of his freedom of speech, but the U.S. Supreme Court said otherwise. They upheld that speech can be restricted if it presented “clear and present danger” and Kagan appears to agree with this idea. She agrees that if there is the possibility of the public being in danger that the speech should be restricted. 

Article Credit May 12, 2010
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