Kagan's View of Free Speech Questionable

This Washington Post editorial entitled “Elena Kagan: Hostile to free speech?” discusses Kagan’s opinion regarding freedom of speech. The author had a vested interest with regard to this when he was involved in a Supreme Court case which pitted Citizens United versus the FEC. Kagan represented the FEC. This case resulted in a landmark decision by the United States Supreme Court holding that corporate funding of independent political broadcasts in candidate elections cannot be limited under the First Amendment. The 5-4 decision resulted from a dispute over whether the non-profit corporation Citizens United could air via video on demand a critical film about Hilary Clinton, and whether the group could advertise the film in broadcast ads featuring Clinton's image, in apparent violation of the 2002 McCain-Feingold Act. The author of this editorial won the case, but is wary of what is to come should Kagan be elected.

This relates to what we have studied in government in that it is talking about the judicial appointment process for the Supreme Court. Bossie says that Kagan is unfit to take a place on the Supreme Court due to her disregard for the First Amendment’s protection of free speech. Bossie argues that she does not regard grassroots interest groups as being constitutionally protected, which would skew her interpretations of Supreme Court cases.

We believe that the author has some very valid point in questioning Kagan’s views on free speech. In the appointment process, her involvement in Citizens United v. FEC should certainly not be overlooked. However, we do take this article with a grain of salt, as the author is incredibly biased because of his involvement in the case.

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Mary M. and Chris D.

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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Infringment on First Amendment.

In the Austin-American Statesman article "Immigration Protesters Released from LA Jail" the First Amendment rights of freedom of speech, assembly and petition are demonstrated . Dissenters to Arizona's new immigration laws decided to stage a protest last week in Los Angeles where they chained themselves together and layed down in front of an immigrant detention center. after blocking traffic for roughly four hours, they were surrounded by police and arrested. The assembly was deemed "unlawful" and the demonstrators were charged with interfering with police work, and failure to disperse. They were released late Friday and are due in court on June 4th. This situation deals with the freedom of assembly, speech and petition secured by the First Amendment to the Constitution. The protesters had every right to assemble and protest, but they lacked a permit for the demonstration stating the time, place and manner (a provision established in Skokie v. Illinois).

Tensions High at California High School Following Flag Flap

On May 5, 2010, Cinco de Mayo, five students at a California School showed up to classes wearing controversial American flag t-shirts. Over 200 Hispanic students skipped class and marched near the office of the School Board chanting "we want respect," so the boys were pulled out of school by two officers after the alert of gang-violence spread. The five boys were sitting outside the school at a lunch table when they were told to remove the American flag bandannas (which they did), but once they were told to turn their t-shirts inside-out, they refused. The boys felt that the principal was "overstepping his bounds." They understood his concern, but there was no indication that any violence was going to happen at all. The school was in fact protecting its campus, but it was also introducing an idea that students are not allowed to freely express themselves by wearing patriotic clothing. Therefore, the actions of the school violated the First Amendment rights of the students. Since there was no actual violence, the school board did not have significant reason to send the boys home, and since Cinco de Mayo, the case is under review and that the boys and their parents are likely to have a winning case on their hands if they take the matter to court. In the article, a principal at a school in California asked boys at a school to turn their American flag shirts inside-out. This is related to the topic of First Amendment rights, in this case speech. The wearing of the American flag t-shirt is an example of symbolic speech, an expression protected under Texas v. Johnson when it was decided that the burning of the American flag and other forms of symbolic were protected. Also, in Tinker v. Des Moines, it was declared that students do not shed their rights when they enter through the school gates. Both of these were violated when the Vice Principal and other school administrators were asking the boys to remove and/or turn their shirts inside out. However, according to Schenck v. United States, the Supreme Court ruled that speech could be restricted by the government if it presented a clear and present danger, as was argued by the school administrators at this school in California, believing that it would incite the Hispanic community at the school that was participating in large Cinco de Mayo celebrations and protesting the new Arizona law.

Article Credit May 7, 2010

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