Kagan's troubling First Amendment views.

[Guest]

It would seem that even with a very limited "paper trail", Kagan has enough documentation to suggest, rather strongly, that she does not share the concept of Free Speech that the majority of Americans share.
http://www.foxnews.com/opinion/2010/06/02/horace-cooper-elena-kagan-amendment/

[Guest]

I'm more concerned about how that article was written. There are no real details and the article is even internally inconsistent.

Here's an example:


As early as 1992 Kagan describes a theory of the First Amendment involving “viewpoint based government regulation” -- the classic type of speech the First Amendment guards against -- which might be allowed when racist or sexist speech is involved; especially she says if a more “advantageous change in the Court’s membership” were to occur. Conversely, under her theory if the speakers subject to her lower threshold for speech regulation manage to get a subsidy from the federal purse, then she claims the government should have less ability to regulate their speech.


At first the writer says she's describing a theory - then, later on he writes "under HER theory". Heck *I* can 'describe' many theories I don't agree with. So what was the story? Was this her theory or was she just talking about *a* theory?

Next he writes:


Next, there is her 1995 University of California, Davis law review article on speech codes in which she asserts one way to defend a Stanford University speech code would be to consider it “a ban on the subcategory of fighting words that must pose the dangers associated with fighting words generally.” This has strong anti-First Amendment implications. Logically, Congress could pass an anti-discrimination statute that revokes the tax-exempt status of churches that advocate traditional marriage since many Americans find this position to be offensive.


Again, was this a mental exercise or was this her honest belief? How many times in school were any of us asked to debate and take a particular side?

Then he goes on with:


Finally there is a 1996 Chicago Law review article on the First Amendment in which Kagan theorizes that the Courts -- instead of focusing on the First Amendment’s goal of ensuring that individual expression and the marketplace of ideas is encouraged -- should focus on the government’s motives in adopting regulations that impact speech.


Why not examine governmnet's motives in restricting free speech? I mean, if someone says "You shouldn't say that", isn't your first reaction to pipe up with "WHY?"

Then there's the bit about when she was Solicitor General and the flap over the anti-Hillary movie and Federal Election laws. Correct me if I'm wrong (and here I certainly could be) but didn't she get her marching orders on that from the White House?

It would *appear* to me that the writer is making the mistake of thinking that everything someone writes at work is representative of their personal beliefs.

If she had said something like "I wish we could restrict Free Speech more" in the context of a meeting or social gathering, I would be a lot more worried. Perhaps a contributing fact to this is that opinion columnists are allowed to write about what they believe in - THAT is their job (or at least an aspect of it). If someone wanted to find out what *I* might do in the position of a Supreme Court Justice, they should look at my postings online, talk to my friends, etc. What I've had to do in my career doesn't necessarily reflect my personal beliefs (especially when I was working in the mutual fund industry)

[Guest]

Here's an article that quotes Kagan's review of a book called "The Confirmation Mess".

It makes more sense to me that this would be a better indicator of her views given that she was writing this on her own - no excuses for anything.

http://www.msnbc.msn.com/id/37482902/ns/politics/

[Guest]

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.

[Guest]

This is great. First I get to read Djplong's reaction and analysis to the article I linked, and then get to read BK's view and informative analysis of the article and Djpongs post.
This is TOTV at its best. Thanks guys!!

[Guest]

If I read the link correctly and this is the part I liked:

Kagan’s office argued in the first of two hearings before the Supreme Court that not only could the FEC regulate the Hillary movie, it could also ban the publication of books as well if they were deemed to be campaign ads.

She's good for me.

[Guest]

You really surprise me cologal. I would think you, of all people, would be a supporter of freedom of speech and vehemently opposed to censorship by the government.

[Guest]

If I read the link correctly and this is the part I liked:

Kagan’s office argued in the first of two hearings before the Supreme Court that not only could the FEC regulate the Hillary movie, it could also ban the publication of books as well if they were deemed to be campaign ads.

She's good for me.

When has it ever been American to be for the restriction of speech and ideas in the public forum in any application. A very surprising viewpoint.

[Guest]

You really surprise me cologal. I would think you, of all people, would be a supporter of freedom of speech and vehemently opposed to censorship by the government.


Sorry....big Hillary fan hated that thing.

[Guest]

Sorry....big Hillary fan hated that thing.

So, if it's something you don't like, you like laws passed against it no matter the Constitutionality of it?

I think I said as much in a previous post commenting on one of your views. I see I was right on the money.

[Guest]

So, if it's something you don't like, you like laws passed against it no matter the Constitutionality of it?

I think I said as much in a previous post commenting on one of your views. I see I was right on the money.

Take a chill pill... you and I grew up in the same places. I was born in NYC and grew up in Sussex County, NJ Lake Tamerack to be exact. But politically we are opposites. You agree with the Citizens United decision and I do not. That's life...doesn't make me a bad person. Just a little left of you.

[Guest]

Take a chill pill... you and I grew up in the same places. I was born in NYC and grew up in Sussex County, NJ Lake Tamerack to be exact. But politically we are opposites. You agree with the Citizens United decision and I do not. That's life...doesn't make me a bad person. Just a little left of you.

I don't think you're a bad person. In fact I think most of your comments are well meant in your own frame of belief and reference.

What frustrates me is that it seems you have much less regard than me for the ideal of protecting our God-given and Constitutionally protected individual rights if it happens to promote an immediate concern or result that you support.

Freedoms, once lost, are seldom, if ever, reacquired.

[Guest]

I don't think you're a bad person. In fact I think most of your comments are well meant in your own frame of belief and reference.

What frustrates me is that it seems you have much less regard than me for the ideal of protecting our God-given and Constitutionally protected individual rights if it happens to promote an immediate concern or result that you support.

Freedoms, once lost, are seldom, if ever, reacquired.

See I struggle sometimes with free speech...so lets see where we might agree on the struggle. I live out West now and the Westboro Church likes to come and visit us from time to time. I absolutely hate that he and his family can protest at the funerals of our soldiers killed in action and say the absolutely horrible things they shout. No family deserves that. Now I know this case is making its way to the Supreme Court....so what's your take on this one?

[Guest]

See I struggle sometimes with free speech...so lets see where we might agree on the struggle. I live out West now and the Westbrook Church likes to come and visit us from time to time. I absolutely hate that he and his family can protest at the funerals of our soldiers killed in action and say the absolutely horrible things they shout. No family deserves that. Now I know this case is making its way to the Supreme Court....so what's your take on this one?

No one denies the Westbrook Church the right to speak out on any issue. The Westbrook Church is free to picket a federal building, if they like, and spout their hateful views and rhetoric if they wish. The problem with the Westbrook Church is the harassment and abuse targeting the grieving family of a serviceman.
I can say I disagree with a position of yours and we can discuss it, but it would be wrong of me to bring a group of friends and target you and your family to protest the policies of the Obama regime when you have no direct influence on these policies.
I believe you would rightfully have a restraining order put on me in no time.
This is basically the same theory and the Supreme Court needs to put a "restraining order" on the Westbrook Church to prevent the future harassment of military families.

[Guest]

No one denies the Westbrook Church the right to speak out on any issue. The Westbrook Church is free to picket a federal building, if they like, and spout their hateful views and rhetoric if they wish. The problem with the Westbrook Church is the harassment and abuse targeting the grieving family of a serviceman.
I can say I disagree with a position of yours and we can discuss it, but it would be wrong of me to bring a group of friends and target you and your family to protest the policies of the Obama regime when you have no direct influence on these policies.
I believe you would rightfully have a restraining order put on me in no time.
This is basically the same theory and the Supreme Court needs to put a "restraining order" on the Westbrook Church to prevent the future harassment of military families.

Ok on this one we agree.... we shall see what the Court does.

[Guest]

Ok on this one we agree.... we shall see what the Court does.

I knew we couldn't disagree on everything. If even you and I are simpatico on this we can only hope the court is in the same mindset.

[Guest]

When "speech" becomes "harassment" - that's the line, IMO. Now, *defining* that line is difficult. You don't arrest someone for what they said - arrest them for where and how they're saying it. Westbrook can espouse their rhetoric all they want wherever they want, until it becomes harrassment at a funeral.

[Guest]

djplong, from what I have read, and my limited understanding of the law, here is the argument going before the Supreme Court of the United States.

The case is based on the Sept. 24, 2009, reversal by the United States Court of Appeals of an Oct. 31, 2007, jury verdict and post-jury verdict decision of the United States District Court for the District of Maryland.

The main thrust of the reversal targeted the liability of the Phelps' (WBC) and the monatary part of the verdict. It turned into a case of placing one person's Constitutional protected rights over another person's Constitutional protected rights. The right to peaceable assembly (to grieve and bury and loved one) over freedom of speech (the WBC).


When I copy and paste from the petions brief, it comes out weird like the following. Sorry, but it is readable. I'm also too lazy to correct it. You can read the brief at the link below.

Starting at page 64 of the brief filed:

"eVEN THE PHELPSES DO NOT GENUINELY DISPUTE THAT,
BY TARGETING THEIR PROTESTS AT mR. sNYDER, THEY
DISRUPTED HIS PEACEFUL ASSEMBLY AND MOURNING PROCESS.
aS A CONSEQUENCE, WHEN THE FOURTH ¢IRCUIT IMMUNIZED
THE PHELPSES FROM LIABILITY, IT NECESSARILY CHOSE TO
SUBORDINATE mR. sNYDER’S FIRST aMENDMENT RIGHTS OF
FREE EXERCISE AND PEACEFUL ASSEMBLY TO THE PHELPSES’ FREE
SPEECH RIGHTS. sUCH A WHOLESALE PROMOTION OF THE FREE
SPEECH RIGHTS OF ONE PARTY WITHOUT ACCOUNTING FOR THE
FREE EXERCISE AND PEACEFUL ASSEMBLY RIGHTS OF ANOTHER
HAS NO SUPPORT IN THE ¢ONSTITUTION."

The petitioner in the Supreme Court case is Albert Snyder, the father of the deceased US Marine Matthew Snyder and the respondents are Fred Phelps Sr. et al (First Baptist Church, Inc.; Rebekah A. Phelps-Davis, Shirley Phelps-Roper, and several John and Jane Doe defendants-appellants). All Phelps family members and minor children family members also. That is usually the extent of the protesters, about six people.

"tHE PHELPSES HAVE ARGUED, AND THE FOURTH ¢IRCUIT
HELD, THAT THE dISTRICT ¢OURT’S FAILURE TO DIRECT A VERDICT
IN THEIR FAVOR VIOLATED THEIR FIRST aMENDMENT FREE
SPEECH RIGHTS. bY THE SAME TOKEN, HOWEVER, THE FOURTH
¢IRCUIT’S DECISION TO DIRECT A VERDICT FOR THE PHELPSES ON
FIRST aMENDMENT GROUNDS CONSTITUTES GOVERNMENT
ACTION THAT ADVERSELY AFFECTS mR. sNYDER’S FIRST
aMENDMENT RIGHTS TO FREE EXERCISE AND FREEDOM OF
ASSEMBLY. bY IMMUNIZING OBTRUSIVE CONDUCT UNDER THE
GUISE OF FREE SPEECH, THE FOURTH ¢IRCUIT’S RULE WOULD
ALLOW UNINVITED, ANTAGONISTIC INDIVIDUALS TO INFRINGE
ANOTHER CITIZEN’S CONSTITUTIONALLY PROTECTED FREEDOMS
AND LEAVE THE VICTIM WITH NO LEGAL RECOURSE.
rATHER THAN SIMPLY ELEVATING THE PHELPSES’ FREE
SPEECH RIGHTS BY GRANTING ABSOLUTE PROTECTION TO THEIR
EXPRESSIVE CONDUCT, THE ¢OURT WAS REQUIRED TO BALANCE
THOSE RIGHTS AGAINST mR. sNYDER’S RIGHT TO FREE EXERCISE
AND ASSEMBLY. tHIS ¢OURT’S TREATMENT OF THE PRIVACY
INTEREST IS INSTRUCTIVE ON THIS POINT. aS DISCUSSED ABOVE,
WHERE A PERSON’S FREE SPEECH RIGHTS ARE INFRINGING
ANOTHER’S PRIVACY RIGHTS, THE ¢OURT HAS ALLOWED THOSE
SPEECH RIGHTS TO BE CURTAILED “DEPENDENT UPON A SHOWING
THAT SUBSTANTIAL PRIVACY INTERESTS ARE BEING INVADED IN
AN ESSENTIALLY INTOLERABLE MANNER.” eRZNOZNIK V. ¢ITY OF
JACKSONVILLE, 422 U.s. 205, 209, (1975) (QUOTING ¢OHEN
V. ¢ALIFORNIA, 403 U.s. 15, 21 (1971)); SEE ALSO HILL V.
¢OLORADO, 530 U.s. 703, 716 (2000). tHE CASE FOR
PROTECTING AN INDIVIDUAL’S RIGHTS TO EXERCISE HIS RELIGION
AND TO PEACEFULLY ASSEMBLE AT A FUNERAL SERVICE IS EVEN
STRONGER. iNDEED, THE FOUNDERS CHOSE TO PLACE THESE
RIGHTS ON EQUAL FOOTING WITH THE RIGHT TO FREE SPEECH BY
LISTING ALL THREE PROTECTIONS IN THE FIRST aMENDMENT."


Here's the part I love:

"tHE PARTY AGAINST WHOM CIVIL DAMAGES ARE SOUGHT
SHOULD NOT BE ABLE TO ENGAGE IN ACTIONS THAT INFRINGE CONSTITUTIONALLY PROTECTED RIGHTS WHILE, AT THE SAME TIME,
CLOAKING SUCH ACTIONS WITH THE IMPREGNABILITY AFFORDED
BY OTHER CONSTITUTIONAL RIGHTS. tO QUOTE JUSTICE HOLMES,
“THE RIGHT TO SWING (ONE’S) FIST ENDS WHERE THE OTHER
MAN’S NOSE BEGINS.” JUSTICE HOLMES’ NOTION OF BALANCING
FREEDOMS IS INSTRUCTIVE. oNE’S RIGHT OR FREEDOM ENDS
WHERE IT CONFLICTS WITH OR INFRINGES THE RIGHT OR FREEDOM
OF ANOTHER."


http://www.abanet.org/publiced/preview/briefs/pdfs/09-10/09-751_Petitioner.pdf

[Guest]

http://www.youtube.com/watch?v=N5w-E55fZ1c&feature=player_embedded

[Guest]

Does anyone recall the then SENATOR Obama who joined in an attempt to filibuster Alito ? Now, filibuster is a bad word to him and an example of not cooperating.


Does anyone recall the then SENATOR Obama saying about Roberts that (and the quote marks indicate exact quotes) “adherence to legal precedent and rules of statutory or constitutional construction.” But there was a problem regarding “empathy.”

Can you imagine anyone saying that about his appointments "empathy" ? This would light up the MSNBC talk shows and become the latest example of the party who just says no.