By ADAM LIPTAK
c.2010 New York Times News Service
WASHINGTON — In her early years as a law professor, Elena Kagan wrote almost exclusively on the First Amendment. There are indications in those writings that her views on government regulation of speech were closer to the Supreme Court’s more conservative justices, like Antonin Scalia, than to Justice John Paul Stevens, whom she hopes to replace.
Stevens is not a First Amendment absolutist. He wrote the majority opinion in 1978 in Federal Communications Commission v. Pacifica Foundation which said the government could ban the broadcast of George Carlin’s “seven dirty words” monologue. And he dissented in Texas v. Johnson, a 1989 decision striking down a state law that made it a crime to burn the flag, while Scalia was in the majority.
There is good reason to think Kagan disagreed with Stevens in both cases.
“Her articles on free speech showed a strong sense of the importance of civil liberties as a bulwark against ideological orthodoxy — a perspective that will give her ready camaraderie with free speech devotees on the court like justices Scalia, Kennedy and Thomas,” Kathleen Sullivan, a former dean of Stanford Law School, said in a blog post on The New York Times’ website.
About the flag-burning case, Kagan wrote in 1996 that “the court, in invalidating the statute, made the correct decision.”
The passage appears in Kagan’s most-cited First Amendment article, “Private Speech, Public Purpose,” which was published in The University of Chicago Law Review. The article contains few statements as direct as the one about the flag-burning case. But she did say that “the government may not limit speech because other citizens deem the ideas offered to be wrong or offensive,” which suggests a position at odds with Stevens in the “seven dirty words” case.
First Amendment scholars have been rereading Kagan’s work in recent days. Much of her work was concerned with more abstract First Amendment theory as applied to the hot topics of the day, including pornography and campus speech codes. But her writings also echo the views of several of the Supreme Court’s more conservative justices.
In 1992, she wrote an essay endorsing Scalia’s opinion in RAV v. City of St. Paul, a decision that year striking down a hate-speech ordinance. The case involved dueling opinions from Scalia and Stevens, who reached the same result on different grounds.
On the central questions in the case, Kagan sided with the more conservative justice. “Justice Scalia seems to me to have the upper hand,” she wrote at one point. “The position of Justice Stevens cannot be right as a general matter,” she said later.
As U.S. solicitor general, the government’s top appellate lawyer, Kagan has sometimes taken positions seemingly in tension with her academic writing, including in Citizens United v. Federal Election Commission, the blockbuster 5-4 decision in January that allowed unlimited corporate spending in elections.
Marvin Ammori, who teaches First Amendment law at the University of Nebraska, said Kagan might have voted with the majority in that case. “Looking at Elena Kagan’s scholarship,” Ammori wrote on the legal blog Balkinization, “I doubt she agrees with Justice Stevens, who dissented in Citizens United, and suspect she is a defender of corporate speech rights.”
Kagan’s current personal views on that question are unknown, though she argued and lost the government’s side of the case as solicitor general.
Sen. Arlen Specter, D-Penn., said Kagan discussed the case with him in a meeting on Thursday. “She said there wasn’t sufficient deference to Congress” in the majority opinion, Specter told reporters.
That comment may provide a glimpse of Kagan’s thinking, but it is nothing like a complete answer to how she would have voted in Citizens United, one of the most divisive Supreme Court decisions in recent memory and the subject of repeated criticism from President Barack Obama, including in comments in his State of the Union address in January and in announcing his nomination of Kagan on Monday.
An advocate’s private views and the positions she takes on behalf of a client in court need not be identical, of course. Kagan’s adversary in the Citizens United case, Theodore Olson, had, for instance, defended the law as solicitor general in 2003.
In announcing Kagan’s nomination, Obama said her decision to argue that case against long odds “says a great deal about her commitment to protect our fundamental rights, because in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.”
But Kagan has been skeptical of that idea, devoting eight of the 1996 article’s 105 pages to a ruminative critique of “laws ‘equalizing’ the speech market.” She seemed wary of what she called “schemes designed to promote balance or diversity of opinions,” saying the government often cannot be trusted to regulate the marketplace of political ideas.
In her argument in Citizens United in September, she expressly rejected that equalization rationale as a basis to regulate corporate speech, though she did defend the central precedent at issue in the case, Austin v. Michigan Chamber of Commerce, on other grounds, including that corporations may be treated differently from individuals.
In the 1996 article, however, Kagan rejected a version of an argument commonly made on the left these days — that corporations may be regulated because they are artificial entities created by the government. Or, as Kagan characterized the argument in her article, that regulation is permissible “on the ground that corporate wealth derives from privileges bestowed on corporations by the government.”
“This argument fails,” Kagan wrote, “because individual wealth also derives from governmental action.”
In the article, she also said campaign finance laws were problematic because they could “serve as incumbent-protection devices, insulating current officeholders from challenge and criticism.”
At the argument in September, Scalia pressed Kagan on this point.
“I doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents,” Scalia said. Kagan demurred, saying the facts supported the contrary view. “In fact, corporate and union money go overwhelmingly to incumbents,” she said. Barring such spending, she went on, “may be the single most self-denying thing that Congress has ever done.”
Richard Hasen, an election law specialist at Loyola Law School in Los Angeles, said “there is some tension between what she writes in the article and what she said to Justice Scalia on incumbency and the corporate spending limits.” But Hasen added that Kagan statements in court were on behalf of her client and might not represent her own thinking, which might in any event have changed in the intervening 14 years.