- The Washington Times - Tuesday, May 18, 2010

ANALYSIS/OPINION:

Would Supreme Court nominee Elena Kagan outlaw “Common Sense”? Ms. Kagan’s work on First Amendment free-speech issues suggests she might restrict Thomas Paine, circa 1776, from distributing his famous pamphlet. Solicitor General Kagan likewise might outlaw “The Federalist Papers” if Founding Fathers James Madison and Alexander Hamilton refused to say who paid to publish their essays. These views on the First Amendment are troubling enough to raise serious doubts as to whether the Senate should confirm her for the high court.

It was President Obama who deliberately put the focus on Ms. Kagan’s First Amendment theories by highlighting her efforts to restrict the ability of corporate entities to engage in political speech. As former Gov. Frank White of Arkansas once put it, the president thus “opened a whole box of Pandoras.” Ms. Kagan’s First Amendment work repeatedly promotes the idea that speech rights are granted by government rather than inherent in the God-given nature of man.

In her Supreme Court oral arguments in the corporate-speech case of Citizens United v. FEC, Ms. Kagan hedged on whether government could ban corporate-funded political books. But she did say that “a pamphlet would be different. A pamphlet is pretty classic electioneering,” and thus subject to campaign restrictions. So sorry, Mr. Madison.

In the government’s brief in a case called United States v. Stevens, Ms. Kagan elaborated: “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.” Whoa, Nellie, who - pray tell - does the balancing? Judges? Bureaucrats? The Almighty President?

While it isn’t always fair to ascribe personally to solicitors general the positions they argue in court on the government’s behalf, it is fair if the arguments they use in court echo ones they made in private practice. Ms. Kagan’s record suggests her personal views match her solicitor arguments. In a 1996 University of Chicago Law Review article, she argued that speech restrictions are allowable if the government’s “motive” is acceptably nonideological. In dense academic prose, Ms. Kagan openly mused about the merits of “redistribution of expression,” of “neutral regulations of speech … that are justified in terms of achieving diversity” and of “disfavoring [an] idea [to] ‘unskew,’ rather than skew, public discourse.”

These government-favoring ideas on speech mirror a government-centric view of … well, of everything. In a footnote in that 1996 essay, Ms. Kagan wrote that restrictions on corporate speech were based “on the ground that corporate wealth derives from privileges bestowed on corporations by the government. But this argument fails, because individual wealth also derives from government action. … The question in every case is whether the government may use direct regulation of speech to redress prior imbalances.”

The simple answer to that question is no. Individuals, not governments, create wealth - and individuals acting in a free market of ideas can use speech to try to redress any perceived imbalances. Ms. Kagan’s apparent view to the contrary is disturbing and should be disqualifying.

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