djplong, IMHO, in order to fully grasp the article, I think it is important to understand the meaning of a law review, a written legal opinion and a treatise. None of these is something written casually, in a social setting, on a blog or a in a forum.

Also, when reading the article pertaining to the First Amendment, it is important to understand that legally there are many realms when you discuss freedom of "speech," exceptions to free "speech" and the legal rulings on people's rights to such types of speech and expression.

Kagan argues some of her opinions, reviews and even in a treatise to the US Supreme Court Review regarding a ruling on a case, Rust v. Sullivan that the government should be allowed more restrictions on speech.

The very basic premise of Kagan's interpretation of viewpoint based government regulation of free speech is: If the government perceives that something is good for the overall welfare of the country then more freedom should be allowed. If the government perceives that certain things are not good for the country than less freedom of speech should be allowed.

Scary stuff there in my opinion.

The Rust V. Sullivan case, very simply, was whether the Dept. of Health and Human Services violated the right of free speech when the published regulations stating that federal tax dollars would not be provided under the Title X family planning program to clinics that either counseled women to have abortions or referred women to abortion doctors, or advocated abortions. Family planning providers in favor of abortion sued saying they had a right under the First Amendment to receive tax dollars to counsel pregnant women to get abortions, direct them to abortion doctors...et al.
When the Supreme Court said the "government has no right or obligation to subsidize even the exercise of fundamental rights, including 'speech rights.'"

That is when Kagan wrote that the Court's decision was "viewpoint" discrimination. First she wrote an essay in The University of Chicago Law Review against the Supreme's decision and then in a 48-page treatise in The Supreme Court Review trying to rewrite the constitional doctrine on freedom of speech into what she called "content-based underinclusion."

The 1992 theory referred to in the article is Kagan's theory of viewpoint based government regulation of free speech.