conservative media, psuedo civil libertariansim and Kagan

It's begun.... well of course it's begun, but the "Conservatives" and their media outlets are pushing a new, and baffling, meme. Supreme court nominee Elana "Kagan argued for gov't 'redistribution of speech'" - so is the headline on The Drudge Report this morning. The link is to a CNSNews.com analysis of an a paper Kagan wrote entitled: "Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine."

From the analysis we learn that:

 

Kagan said that examination of the motives of government is the proper approach for the Supreme Court when looking at whether a law violates the First Amendment. While not denying that other concerns, such as the impact of a law, can be taken into account, Kagan argued that governmental motive is "the most important" factor.
 
In doing so, Kagan constructed a complex framework that can be used by the Court to determine whether or not Congress has restricted First Amendment freedoms with improper intent. 
 
She defined improper intent as prohibiting or restricting speech merely because Congress or a public majority dislikes either the message or the messenger, or because the message or messenger may be harmful to elected officials or their political priorities.

 

Sounds good so far, we should be able to criticise and say things about government (hello Tea Partiers!) And the analysis cites as an example campaign finance laws:

 

The first part of this framework involves restrictions that appear neutral, such as campaign finance laws, but in practice amount to an unconstitutional restriction. Kagan wrote that the effect of such legislation can be taken as evidence of improper motive because such motives often play a part in bringing the legislation into being.

 

"The answer to this question involves viewing the Buckley principle [that government cannot balance between competing speakers] as an evidentiary tool designed to aid in the search for improper motive," Kagan wrote. "The Buckley principle emerges not from the view that redistribution of speech opportunities is itself an illegitimate end, but from the view that governmental actions justified as redistributive devices often (though not always) stem partly from hostility or sympathy toward ideas or, even more commonly, from self-interest."

 

Such a belief would put her with the court's majority in the recent Citizens United case where Justice Kenedy wrote for the majority, "it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech."

 

So the first amendment is alive and well, yay. So where's the problem? I suppose it must be in the second part of the analysis which concerns with Kagans view of government restricting language that may cause harm to the public.

 

While Kagan does not offer an exhaustive definition of 'harm,' she does offer examples of speech that may be regulated, such as incitement to violence, hate-speech, threatening or "fighting" words.

It's interesting.  My gut tells me that the critics are narrowly focusing only on the "hate speech" aspect of Kagan's definition of harm. Socially conservative, and specifically religiously conservative folks would find reasons to "fear" (quotation marks are intentional to denote the irrationality and superciliousness of this fear) restrictions on speech if the debates regarding so called hate-speech tell us anything.

 

Perhaps though that expansive definition of harm in conjunction with what followed is what truly disturbs conservatives and makes them believe that Kagan is anything but a civil libertarian.

 

Kagan says that government is also prohibited from treating two identically harmful speakers differently. To do so, she argues, would be to violate what she views as the principle of equality -- making the unequal restriction unconstitutional.
 
"But the government may not treat differently two ideas causing identical harms on the ground that thereby conveying the view that one is less worthy, less valuable, less entitled to a hearing than the other," she wrote. "To take such action -- in effect, to violate a norm of ideological equality -- would be to load the restriction of speech with a meaning that transcends the restriction's material consequence."

Kagan argues rightly in terms of speech that harms - as defined above - that in penalty and force of law when speech is restricted, used and causes harm the penalty for one party should be equally as severe as the other - it doesn't matter if you're Osama Bin Ladin or the Rt Rev. Fred Phelps.

 

There is a proverb for this: your free speech ends where my safety begins.

 

The epistemic closure continues.