In nominating Elena Kagan to the Supreme Court, the Obama administration paves the way for the not-so-slow death of the First Amendment. While Kagan has not made a paper trail with judicial decisions, she has left one as a scholar. Her writings suggest a fundamental disrespect for both the First Amendment as written and a jurisprudence of the First Amendment crafted by justices on the liberal side of the political spectrum.
In her 1993 article "Regulation of Hate Speech and Pornography After R.A.V," for the University of Chicago Law Review, she wrote:
"I take it as a given that we live in a society marred by racial and gender inequality, that certain forms of speech perpetuate and promote this inequality, and that the uncoerced disappearance of such speech would be cause for great elation."
In a 1996 paper, "Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine," Kagan argued for the suppression of speech because it may be offensive.
That paper asserted First Amendment doctrine is comprised of "motives and … actions infested with them" and she further states that "First Amendment law is best understood and most readily explained as a kind of motive-hunting."
In fact, the First Amendment represents the distilled wisdom of two centuries of struggling with the British Crown's attempts to suppress inconvenient opinions. The struggle for free speech in the Anglosphere goes back at least to late 16th century Puritan preachers who had their ears cropped for questioning the propriety of vestments. Today, the same persecuting spirit comes in a boyish bob, winsome smile, and the desire to see to it that nobody questions the wisdom of encouraging schoolchildren to engage in anal sex.
Time was when American liberals were not afraid to let Brandenburg spew his white supremacism in Ohio or American Nazis to march in Skokie, Illinois. Time was when Justice Douglas could speak of Communist propaganda as "unsold goods". Time was when every New Leftist in America honored Lenny Bruce's "How to Talk Dirty and Influence People". Time was when offensive speech was allowed into the open so it could be refuted in rational give-and-take. But now, political speech, which a generation of Supreme Court justices has seen as an unquestioned right in the First Amendment, is too dangerous.
It is just too bad that there are not enough conservative Senators to be sure that Professor Kagan gets a well-deserved Borking.