As I’ve mentioned before, we don’t know much about Elena Kagan’s views on particular free speech cases, largely because much of her work has been analysis and synthesis of existing doctrine, rather than prescription about the way things ought to be. That’s a perfectly sensible approach, since the analytical components of an article are generally more useful to readers than the prescriptive components. But it does make her future votes harder to predict.
One thing that is clear, though, is that she would not have sided with the Justice she’s nominated to replace, Justice Stevens (or his colleagues Chief Justice Rehnquist and Justices White and O’Connor), and instead would have sided with Justices Brennan, Marshall, Blackmun, Scalia, and Kennedy in the flagburning cases. Writing about United States v. Eichman, she says, “[T]he Court, in invalidating the statute, made the correct decision.” 63 U. Chi. L. Rev. at 502. And it’s clear she would have reached the same result in Texas v. Johnson. (For whatever it’s worth, I agree with her on this.)
I believe this is the only occurrence of the phrase “correct decision” in her articles.
Engineer says:
Someone could state one thing in an academic discussion (sincerely even). And then rule something totally different when empowered as a member of the court.
May 12, 2010, 12:45 pmChris Travers says:
But Texas v. Johnson is largely uncontroversial today, and it’s certainly not controversial among either principled conservative jurists or liberals. I would be greatly surprised if anyone appointed to the court today would take issue with that decision. The only nominee I can think of in recent history who might have sided with Stevens in this area would have been Bork…..
May 12, 2010, 1:14 pmAnon21 says:
Well, you should qualify: uncontroversial in the academy. But other than that, I agree; I think it relatively unlikely that even Roberts or Alito would side with the Johnson dissenters if the issue were to somehow come before the Court again.
May 12, 2010, 1:43 pmChris Travers says:
That’s why I particularly pointed out that it’s uncontroversial with principled conservative jurists. There are some other groups of conservatives with whom it is controversial.
BTW, I find the liberal acceptance of the case as generally admitting to a double standard in free speech. I.e. Stevens’ arguments against protection of flag burning basically amounts to a right not to be offended.
May 12, 2010, 2:09 pmzuch says:
Speaking as a liberal, I’m offended. I have never maintained a “right not to be offended”.
I do find some hypocrisy on the conservative side, however. Outrage and scurrilous accusations of “traitor”, “al Qadea lover”, “socialist”, and “un-American” fly freely toward others of a perceived different view, and there’s even talk of revoking citizenship (arguably abetted by one former “Democrat”) or treason prosecutions. The free speech they find so important and worthy of protection tends to be that which is race-conscious, sex-conscious, or some other form of traditional prejudice or malice. Guess they like the old-fashioned prejudices better … which is why they’re “conservative”. ;-)
Cheers,
May 12, 2010, 2:29 pmChris Travers says:
No argument there. Also double standards are a very human thing. We all have them as long as we don’t have to see them.
However what I find interesting about Stevens’ dissent is that it seems to be remarkably similar to arguments in defence of, say, asking for Stephanie Grace’s job on a silver platter, or that she be expelled. I am not saying either one is right. It’s just that sometimes emotions drive out careful consideration :-)
Note this is a sort of semi-strawman here because nobody on this board seems to hold such views. OTOH, perhaps Dr Jonathan Farley might….
May 12, 2010, 2:58 pmzuch says:
Stevens was part of the “Greatest Generation” … that might colour views a bit. But he was hardly alone in his dissent, with O’Connor, Rehnquist, and White dissenting as well (albeit in a separate dissent).
I would note that my ACLUness urges me to differ from Stevens here. Ms. Grace needs education, I think, not opprobrium (and I don’t think anyone has seriously called for her expulsion). But there is the possibility that she’s uneducable (even given her apology).
Cheers,
May 12, 2010, 4:04 pmChris Travers says:
I disagree with you on the educability issue. Ms Grace’s analytical error was narrow in scope and something that can be easily corrected by posing some difficult questions….. And actually I see nothing wrong with her apology.
And ACLUness is a good quality :-D.
As for Dr Farley, his other comments on the board suggest he is truly hostile to the US concept of free speech. This isn’t entirely unexpected given the circumstances under which he left the country (he says it was due to death threats against him and his family after he called for the removal of a statute commemorating the founder of the KKK, and an unwillingness of anyone to defend him). He has furthermore praised Austria’s laws against advocacy of Nazism and the like. I think he is quite sincere in his calls for official punishment for Ms Grace, and while I fundamentally disagree with him, I have some sympathy for his experiences which have lead him to that conclusion. I haven’t heard any other side of the story, so I figure something is missing, but at least his perspective on free speech has been greatly altered.
May 12, 2010, 4:16 pmzuch says:
I have no idea who Dr. Farley is. Probably one of those that goes into the “NWR” file.
Cheers,
May 12, 2010, 4:39 pmzuch says:
YMMV. She supposedly studied at Princeton in this general area, and should have been aware of the issues involved (not to mention basis statistics, such as the difference between one-tailed and two-tailed analysis).
Cheers,
May 12, 2010, 4:41 pmChris Travers says:
He’s a Harvard-and-Oxford educated mathematician who used to teach at Vanderbuilt before fleeing to Austria.
May 12, 2010, 4:55 pmChris Travers says:
Her problem isn’t one of statistics. If you make the assumptions regarding measurement that she does, then the statistics imply that blacks are currently less intelligent than whites and we only need to know why.
I think her problem is a narrow one, and easy mistake to make, namely that she assumed that IQ tests are particularly useful measures of general, real-world intelligence between groups.
May 12, 2010, 4:57 pmA note for Zuch from SarahW says:
Zuch, you seem not to understand the citizenship revocation business at all.
Lieberman had proposed updating the law that already exists to strip naturalized citizens of their citizen within a set period after it is gained – there are several ways that can happen already. One of those ways is to join the army in one’s native country if that country has hostile relations with the US, or to become an officer in that army at any time. Lieberman proposed extending the statute to recognize the realities of modern warfare, the kind that involves individuals coordinating with foreign assistance attacks against the US.
May 12, 2010, 6:21 pmChris Travers says:
I think you miss a few serious elements of Lieberman’s proposal. For example, the PKK is hardly hostile to the US but they are designated as a Foreign Terrorist Organization by the State Department. Additionally serving in Hamas or Hizbullah undermines Israel and is included even though these are not armies hostile to the US in the normal sense.
There are essentially two fundamental Constitutional problems with Lieberman’s proposal.
1) Intent to relinquish citizenship has been seen as a Constitutional requirement and not one Congress is free to legislate away.
2) Free Association clearly includes the right of Americans to associate with foreign terrorist organizations, though there is clearly some disagreement about where these lines are drawn. Compare and contrast briefs and oral arguments in Holder v. Humanitarian Law Project (currently being deliberated by the Supreme Court).
Additionally, levying war against the US has traditionally been grounds for treason. This is essentially an attempt to establish a “treason lite” without any of the traditional due process requirements. Worse, this is extremely over-inclusive. There’s no way that serving in the PKK, in Hamas, or in the LTTE (if they were still around) would constitute levying war on the US or even hostilities towards the US, but that’s still grounds for citizenship revocation.
Of course, the law will be unequally applied if it passes too, with groups like Kach and Kahane Chaim benefitting from non-enforcement.
May 12, 2010, 6:48 pmChris Travers says:
I’d also note that the oral argument transcript in Holder v. Humanitarian Law Project suggests a view by Kagan which is supportive of First Amendment rights regarding Americans to interact with terrorist organizations. As opposed to the briefs and the arguments below which were much more restrictive, Kagan urged the court not to reach the Constitutional grounds but simply interpret the material support statutes narrowly so as to exclude the practices the HLP wanted to engage in.
May 12, 2010, 7:14 pmPersonFromPorlock says:
This comes under the heading of good, clean fun: traditional (not conservative) American politics is pretty much of a contact sport, full of, um, robust expression. “Cross of gold,” “booboisie ,” “Rum, Romanism and Rebellion” and all that.
May 12, 2010, 8:03 pmzuch says:
You seem not to understand. You have to affirmatively show your intent to give up citizenship to lose it. Legislation may be passed that strips citizenship from those who obtained it fraudulently; no big deal as it could be argued they never had it in the first place, at least properly. But beyond that, while legislation can be passed that says that serving in a foreign army shows intent to drop citizenship, that’s not conclusive, and such laws may well not pass constitutional muster unless process is afforded to dispute such a “finding” of the requisite intent. However you slice it, you can’t be stripped of citizenship without at the very least your approval or acquiescence. But that’s what Lieberman wants to encourage, regardless of the constitutional niceties involved. In fact, what Lieberman wants to do is just grand-stand….
Cheers,
May 12, 2010, 10:20 pmzuch says:
Oh. So she wasn’t claiming lack of knowledge and ambivalence (and open-mindedness as to two of the three possibilities), but rather making an affirmative claim? OK….
Cheers,
May 12, 2010, 10:25 pmzuch says:
… and “hunting season” on liberals.
I note FWIW that you clipped the rest of my sentence: “…and there’s even talk of revoking citizenship (arguably abetted by one former “Democrat”) or treason prosecutions.”
Cheers,
May 12, 2010, 10:32 pmChris Travers says:
Her affirmative claim was in the way she phrased her question. She professed open-mindedness as to why blacks were scoring lower, but associated the lower scores with lower intelligence. Behind the question and the way it was asked was an affirmative assumption.
May 12, 2010, 11:03 pmChris Travers says:
On top of that….
The First Amendment protects a right to association which includes a right to associate with domestic terrorist organizations like the KKK. Unless you hold that Americans only have the right to associate with other Americans, the government cannot IMO even criminalize associating with these organizations. (Donating money may be a different matter. But it’s not clear to me that sending medicine to a Hamas-run hospital would be outside of the protected zone.)
May 12, 2010, 11:05 pmChris Travers says:
In case that’s misunderstood, her question really was:
Are blacks less intelligent than whites because of environment or genetics?
May 12, 2010, 11:08 pmTweets that mention The Volokh Conspiracy » One Thing We Know About Elena Kagan’s Views on Particular Free Speech Cases -- Topsy.com says:
[...] This post was mentioned on Twitter by Shari Laster, Suffolk Media Law and Allah Pundit, The Volokh Conspirac. The Volokh Conspirac said: One Thing We Know About Elena Kagan’s Views on Particular Free Speech Cases: (Eugene Volokh… http://goo.gl/fb/sGd2e [...]
May 13, 2010, 12:55 amRicardo says:
I hadn’t heard this about him before as online sources don’t seem to say much about the subject.
On the other hand, the way he smeared Roland Fryer in his blog post and accused Eugene Volokh of spreading “race hate” (before suggesting the U.S. should let fewer people like Volokh into the country) suggests someone who is not merely sensitive on the topic of race and racial differences. Rather it suggests someone who is motivated by the desire to denounce anyone who deviates in any way from Farley’s personal opinions.
This view is further supported by his very public acknowledgment that he considers Che Guevara one of his personal heroes. I mean, if he wants to lionize a leftist with solid anti-racist credentials, couldn’t he have gone with, say, Bayard Rustin rather than a leader of Cuba’s death squads who thought the Soviet Union was a bit weak in the knees?
May 13, 2010, 2:32 amManju says:
i don’t see the hypocrisy angle here. how is calling someone a “socaialist” inconsistent with freedom of speech? indeed its an excercise of the right. if you call stephanie grace a racist while simltaneously defending the 1st ammendment, are you a hypocrite?
May 13, 2010, 5:32 amPersonFromPorlock says:
Oh, that would be the Palmer raids, during the ‘progressive’ Wilson administration.
May 13, 2010, 8:23 amChris Travers says:
Ricardo:
That might explain the NAACP’s unwillingness to get involved.
May 13, 2010, 11:02 amzuch says:
What makes you think I’m any particular fan of Wilson?
Cheers,
May 13, 2010, 3:49 pmzuch says:
… because you clipped the rest of it: “…and there’s even talk of revoking citizenship (arguably abetted by one former “Democrat”) or treason prosecutions.”
Cheers,
May 13, 2010, 3:52 pmzuch says:
Here’s one person exercising their right (or perhaps two). Watch it; it’s well worth the time. While I agree with freedom of speech even for the speech I hate, the cure is as Jefferson suggested: To paste the fat a$$es of the abusers with scorn and calumny so that they will never be allowed to walk in polite (and sane) society again.
Cheers,
May 13, 2010, 3:57 pmRicardo says:
Perhaps Jonah Goldberg’s magnum opus “Liberal Fascism.”
Seriously, these quips about Woodrow Wilson and how his well-documented authoritarian tendencies are somehow the collective responsibility of self-identified modern progressives (a different animal in many respects from the Progressivism of TR and Wilson) or those on the left side of the political spectrum mystify me. It’s quite well-known that Wilson reserved some of his worst vitriol for the American Left and accused many of disloyalty and treason while at the same time acting as an apologist for the KKK. Certain Americans with decidedly left-wing tendencies countered by setting up an organization devoted to fighting Wilson’s attacks on civil liberties. In fact, many people here may have heard of this particular organization.
May 14, 2010, 1:24 amWhere Kagan Is Better Than Stevens on Free Speech - Hit & Run : Reason Magazine says:
[...] Sullum | May 14, 2010 Eugene Volokh notes that Elena Kagan does express one clear opinion about a Supreme Court decision in the 105 pages of [...]
May 14, 2010, 12:54 pm