Supreme Court Nominee Elena Kagan: Selected Freedom of Speech Scholarship

Kathleen Ann Ruane
Legislative Attorney

President Obama has nominated his Solicitor General, Elena Kagan, to be the next Supreme Court Justice. If confirmed, she would fill the seat being vacated by Justice John Paul Stevens upon his retirement at the end of the 2009/2010 term. Prior to her term as Solicitor General, Ms. Kagan, in her capacity as an academic and scholar, wrote influential pieces analyzing free speech jurisprudence.

In particular, Ms. Kagan wrote a law review article entitled "Private Speech, Public Purpose: The Role of Government Motive in First Amendment Doctrine." This article is best described as an attempt to understand the underlying issues free speech doctrine addresses. Ms. Kagan argues, basically, that the Supreme Court scrutinizes most closely speech restrictions that carry the most risk of having been enacted to serve improper government motives (e.g., to benefit certain ideas, to suppress particular ideas, or to serve legislative self-interest). Ms. Kagan opens the article by noting that the Supreme Court claims that the purpose of Congress (or any governmental body) "is not a basis for declaring legislation unconstitutional." Ms. Kagan posits, nonetheless, that free speech jurisprudence is an indirect (even unconscious) attempt by the Court to ferret out improper government motives where speech restrictions are at issue. In this way, she explains seeming inconsistencies in First Amendment law. For example, she uses her improper motive theory to explain why it is permissible for the government to ban all fighting words, but impermissible for the government to ban only fighting words motivated by racial or ethnic discrimination. Under

Ms. Kagan's theory, it is more likely that the latter restriction was enacted pursuant to the improper governmental motive of suppressing ideas with which legislators disagree than the former, making the latter restriction unconstitutional, while the former withstands scrutiny. Ms. Kagan does not appear to argue that the theory she describes is the best possible way to establish a freedom of speech doctrine, nor does she argue that her theory is the only way to understand free speech jurisprudence. She states, instead, that she has engaged in this analysis, because "only when we know why the doctrine has emerged and what purposes it serves will we know whether and how to modify it." Thus, to the extent that she evaluates particular cases within this article, it seems that her assertions of whether particular decisions are "correct" or "incorrect" may refer to whether the reasoning of the decisions fits with the theory of jurisprudence she is explicating rather than her beliefs regarding the proper outcomes of the cases.

Ms. Kagan took a somewhat different, though consistent, perspective in her earlier article entitled "Regulation of Hate Speech and Pornography After R.A.V." The focus of this article, rather than being motivated by an attempt to understand the Court's underlying aims, seemed to be more on crafting statutes that would comport with the Court's existing case law, which takes into account what Ms. Kagan would argue are the Court's underlying aims. Ms. Kagan suggests various ways for crafting statutes that would restrict pornography and hate speech that she believes could be constitutional under the Court's then-current doctrine.

This report will explain these articles in further detail, as well as an additional, shorter piece, discussing the First Amendment implications of codes of conduct at public universities.


Date of Report: June 18, 2010
Number of Pages: 28
Order Number: R41290
Price: $29.95

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