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.
June 28th, 2010 at 7:19 pm
I think there's even no value speech, but that misses the point. The value is not in the speech its in the liberty. Holocaust denial has no intellectual value. The value is their right to say whatever they damn well please. The risk is that you look bigoted, or ridiculous. I'm sad to read this from a potential member of the Supreme Court. Free Speech, people died for that right.
June 28th, 2010 at 7:35 pm
Just more control being threatened. It's funny how we can be so regulated in our speech but the congress and president who are paid by ALL of us can spit crap out of their mouths about tea-partiers just because we don't fit their "agenda" – but if some of us had stated the same things about any specific group we'd be slapped into court for "hate" speech.
It's time to elect someone that understands the concepts that WE have a right to free speech whether it's really convenient to someone else or not.
June 28th, 2010 at 7:39 pm
Any idea in pure form is dangerous. Obviously there a limits to how far speech can go before it threatens the individual. The key to this issue is more complex then just weighing the value. What scares me is not that Kagan sees limitations to what can be said… what scares me is that she (and this is an assumption based on her other loyalties) will assume that violent speech can be policed in a centralized manner by the Federal government or worse… the U.N..
June 28th, 2010 at 7:58 pm
Great point!
Anyone that is appointed to the Supreme Court that feels the Constitution as it was originally intended, can be “modified” or have a different “interpretation” to fit a political agenda poses a serious threat to our liberty.