Kagan Sees Value in Limits to Free Speech

[Pangloss]

President Obama's Supreme Court nominee Elena Kagan apparently sees value in limiting free speech. And some of the instances of her expressing this opinion were notably absent from documents submitted as part of her confirmation process. Specifically, a speech she gave in 1993 (while not employed by any administration) offering suggestions for how to eliminate pornography.

 

“We should be looking for new approaches, devising new arguments,” Kagan declared, according to video of the event reviewed by POLITICO. She seemed to count herself among “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.

 

“Statutes may be crafted in ways that prohibit the worst of hate speech and pornography, language that goes to sexual violence. Such statutes may still be constitutional,” Kagan assured the meeting. She pressed for “new and harsher penalties against the kinds of violence against women that takes place in producing pornography, the use of pandering statutes and pimp statutes against pornographers…perhaps the initiation—the enactment of new statutes prohibiting the hiring of women for commercial purposes to engage in sexual activities.”

 

http://www.politico.com/news/stories/0610/39034.html

 

Porn is considered by many a dead subject, but it has not been that way for very long. The Bush administration was days away from launching a "war on porn" via the Ashcroft Justice Department in the fall of 2001. 9/11 shelved those plans, and the issue has seemed relatively closed, at least on the national level, since that time.

 

But the concerns held by some observers, in particular free-speech advocacy groups, is not limited to a 17-year-old, 12-minute speech. In 2009 her argument for the Obama administration in favor of bans on animal cruelty videos was roundly rejected by an 8-1 Supreme Court rejection.

 

She was employed by the Obama administration, representing her client, but note this particular bit:

 

Kagan also returned to her previous themes about the legitimacy of restraining speech of “minimal value.”

 

The Supreme Court, by 8 to 1, rejected Kagan’s arguments and struck down the statute as unconstitutional. Writing for the majority, Chief Justice John Roberts delivered a stinging rebuke to her suggestion that the court conduct a “categorical balancing” of the costs and “value” inherent in certain speech.

 

Perhaps she was instructed to use the phrase "minimal value"; perhaps not. But what's interesting is that she used the phrase "low-value speech" in a much older law review piece -- the one that stemmed from the speech mentioned above regarding pornography.

 

Crosson said that when she read Kagan’s 1993 article on pornography, the Stevens arguments began to make more sense.

 

“What eventually dawned on me…is that she wanted to use that case as a wedge to broaden the concept of obscenity—to start using obscenity as a bludgeon to start sweeping in other kinds of bad and worthless speech….It’s dangerous,” Crosson warned.

 

In Kagan’s law review piece, she dropped her suggestion for using “pimping” charges against pornographers, but continued to embrace stepped-up enforcement of obscenity laws.

 

“Regulation of obscenity may accomplish some, although not all, of the goals of the anti-pornography movement,” Kagan wrote. She also pressed the notion that pornography is “low-value speech” and that new ordinances aimed at restricting it should be enacted.

 

At one point she seems to go even further than her Chicago speech, implying that eradicating all pornography and hate speech would be a laudable goal.

 

“Such efforts will not eradicate all pornography or all hate speech from our society, but they can achieve much worth achieving,” she wrote.

 

I think this addresses not only the question of her stance on free speech, but also the question of whether the positions she's recently argued before the Supreme Court while representing the Obama administration represent her views.

 

What do you think?

[Moontanman]

President Obama's Supreme Court nominee Elena Kagan apparently sees value in limiting free speech. And some of the instances of her expressing this opinion were notably absent from documents submitted as part of her confirmation process. Specifically, a speech she gave in 1993 (while not employed by any administration) offering suggestions for how to eliminate pornography.

 

 

 

http://www.politico.com/news/stories/0610/39034.html

 

Porn is considered by many a dead subject, but it has not been that way for very long. The Bush administration was days away from launching a "war on porn" via the Ashcroft Justice Department in the fall of 2001. 9/11 shelved those plans, and the issue has seemed relatively closed, at least on the national level, since that time.

 

But the concerns held by some observers, in particular free-speech advocacy groups, is not limited to a 17-year-old, 12-minute speech. In 2009 her argument for the Obama administration in favor of bans on animal cruelty videos was roundly rejected by an 8-1 Supreme Court rejection.

 

She was employed by the Obama administration, representing her client, but note this particular bit:

 

 

 

Perhaps she was instructed to use the phrase "minimal value"; perhaps not. But what's interesting is that she used the phrase "low-value speech" in a much older law review piece -- the one that stemmed from the speech mentioned above regarding pornography.

 

 

 

I think this addresses not only the question of her stance on free speech, but also the question of whether the positions she's recently argued before the Supreme Court while representing the Obama administration represent her views.

 

What do you think?

 

Restricting freedom of speech scares me so bad it could change my political views completly.... Who decides what is acceptable? Evangelical Christians? Muslim clerics? Asexual self righteous demigods?

 

Everybody does it, most like it, no one wants to admit to doing it or liking it , especially not liking to watch it>

 

Has anyone else noticed that the spell cheeker gives you IBM'S for the word Obama's?

Edited June 26, 2010 by Moontanman

[Pangloss]

"Asexual self righteous demigods"?? Well don't mince words, Moon, tell us what you really think!

[Moontanman]

"Asexual self righteous demigods"?? Well don't mince words, Moon, tell us what you really think!

 

The sad thing is I can't figure out which side agrees with me, I hate having to choose a side!

[John Cuthber]

Just a thought; if pornography is a crime, who is the victim?

 

I know that some people in that industry are exploited, but that's the same in other industries. I suspect that it's particularly prone to exploitation because it's on the border of legality.

[Ophiolite]

As a Brit I've always been amused by the defence of the publication of pornography under the umbrella of free speech. Surely what's being defended here is free grunting.