The battle to confirm Elena Kagan as a member of the Supreme Court begins.  There has been a lot written on her free speech views but very little content of hers to glean from. I will throw in my 1/2 cent.

At a 1993 conference at the University of Chicago Law School she spoke on the benefits of regulating certain “classes” of speech, specifically referring to pornography and hate speech.   The video of the speech was reviewed by Politico. She stated:

“those of us who favor some form of pornography and hate speech regulation” and told participants that “a great deal can be done very usefully” to crack down on such evils.

She further stated:

“Statutes may be crafted in ways that prohibit the worst of hate speech and pornography, language that goes to sexual violence”

While Kagan appears to be focusing more on conduct based regulation when it comes to hate speech, one has to be concerned when we start talking about  a categorical balancing of the costs and “value” inherent in certain speech.  This takes us into a legal form of “social engineering” that has no place on the court.

If speech leads to imminent lawless action or fits a few other very narrow categories  we already can regulate it and we do. Even these types of laws, however, have been subject to moral flexibility. The use of child pornography laws to prosecute sexting is an example.  What about hate speech? Who sets the bar?   Are we going to criminalize Holocaust Denial?  That’s low value speech to me.  Why not?  If she gets hers, I want mine.  It’s ad hoc right?   What about inflammatory political speech?   We tried that once. It was called Sedition. Didn’t work out well.  Certainly not for those who went to prison for criticizing the government.

I am not contending that Kagan is going to go off the “free speech deep end” but to even consider any type of “value balancing” approach to hate speech even with the best intentions could take us down a free speech rabbit hole that will be hard to climb out of, setting the 1st Amendment back decades.

Is there low value speech?  I agree with Kagan that there is.  That does not mean the court should start adding ad hoc categories designed to tell me what it is. I can decide for myself and make my personal decision if I want to view it, engage in it or debate it.  There is already enough subjectivity to go around without opening up a Pandora’s Box of  moral interpretation.