NEW YORK – Elena Kagan, President Obama’s pick for the U.S. Supreme Court, argued the government may not ban flag-burning protests.
However, Kagan has advocated silencing other kinds of speech, stating, for example, speech that promotes “racial or gender inequality” could be “disappeared.”
Writing in the Spring 1996 edition of the University of Chicago Law Review, Kagan argued that while the government may enact a general ban on fires in public places, it cannot enact legislation to ban flag-burning protests specifically.
She wrote: “The government may stop protesters from burning flags by enacting a general restriction – say, a ban on lighting fires in public places. But the government may not specifically proscribe the burning of flags for purposes of protest.”
Kagan also agreed with a 1989 court decision striking down a state law that made it a crime to burn the American flag.
Meanwhile, when it comes to other First Amendment issues, Kagan shows strong beliefs for court intervention in speech, going so far as to assert free speech should be weighed against “societal costs.”
In her 1993 article “Regulation of Hate Speech and Pornography After R.A.V,” for the University of Chicago Law Review, Kagan writes:
“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.”
Also in a 1996 paper, “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine,” Kagan argued it may be proper to suppress speech because it is offensive to society or to the government.
The paper asserted First Amendment doctrine is comprised of “motives and … actions infested with them,” and she goes so far as to claim, “First Amendment law is best understood and most readily explained as a kind of motive-hunting.”
Kagan’s name was also on a brief, United States v. Stevens, dug up by the Washington Examiner, stating: “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.”
Kagan’s academic writings are sparse – just nine articles, two of which are book reviews.
Her stand on free speech could become a hot button issue as the Senate confirmation hearings convene.