- The Washington Times - Monday, October 4, 2010

Defenders of the First Amendment are worried about the Supreme Court term that opened yesterday. With potentially explosive First Amendment cases on the docket, new Supreme CourtJustice Elena Kagan is in prime position to push odd and dangerous ideas about free speech.

The two main free-speech cases at issue are especially ripe for Justice Kagan to reshape the law because neither one lends itself to obvious conservative-vs.-liberal divisions. They involve some of the toughest conundrums in jurisprudence in which speech rights clash with a community’s desire to protect vulnerable individuals from harm. The first case, Snyder v. Phelps, centers on protests at military funerals. The second, Schwarzenegger v. Entertainment Merchants Association, involves a law restricting the sale of violent video games to minors.

The issues at stake are larger than the bare facts of each case because the lasting effect of Supreme Court decisions is not in who wins or loses but in the constitutional reasoning expounded by the justices. In complicated, cross-cutting cases like Snyder and Schwarzenegger, small phrases in the reasoning may be seized upon later to create new constitutional doctrine. Therein lies the danger from Justice Kagan.

In the Obama administration’s brief in a case called United States v. Stevens, then-Solicitor General Kagan wrote: “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.” The subtext was that almighty judges are the ones to do the ultimate balancing. In academic papers, Ms. Kagan 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.” She also wrote favorably about government “doling out th[e] favor” of certain speech rights, as if our rights come from government.

“The question in every case,” she wrote in 1996, “is whether the government may use direct regulation of speech to redress prior imbalances.” Justice Kagan’s record indicates she thinks the answer to that question is “yes.”

The two pending cases consider the circumstances under which government may be able to block speech that is purported to be harmful by its very nature. Under traditional understandings of the First Amendment, government almost always should be kept at bay, and speech free. The risk with Justice Kagan is that she will resolve close calls in favor of government rather than freedom.