NYT: On Speech, Kagan Leaned Toward Conservatives

WASHINGTON — In her early years as a law professor, Elena Kagan wrote almost exclusively on the First Amendment. There are indications in those writings that her views on government regulation of speech were closer to the Supreme Court’s more conservative justices, like Antonin Scalia, than to Justice John Paul Stevens, whom she hopes to replace.

First Amendment scholars have been rereading Ms. Kagan’s work in recent days. Much of her work was concerned with more abstract First Amendment theory as applied to the hot topics of the day, including pornography and campus speech codes. But her writings also echo the views of several of the Supreme Court’s more conservative justices.

In 1992, she wrote an essay endorsing Justice Scalia’s opinion in R.A.V. v. City of St. Paul, a decision that year striking down a hate-speech ordinance. The case involved battling opinions from Justices Scalia and Stevens, who reached the same result on different grounds.

On the central questions in the case, Ms. Kagan sided with the more conservative justice. “Justice Scalia seems to me to have the upper hand,” she wrote at one point. “The position of Justice Stevens cannot be right as a general matter,” she said later...

As United States solicitor general, the government’s top appellate lawyer, Ms. Kagan has sometimes taken positions seemingly in tension with her academic writing, including in Citizens United v. Federal Election Commission, the blockbuster 5-to-4 decision in January that allowed unlimited corporate spending in elections.

Marvin Ammori, who teaches First Amendment law at the University of Nebraska, said Ms. Kagan might have voted with the majority in that case. “Looking at Elena Kagan’s scholarship,” Professor Ammori wrote on the legal blog Balkinization, “I doubt she agrees with Justice Stevens, who dissented in Citizens United, and suspect she is a defender of corporate speech rights.”

http://www.nytimes.com/2010/05/16/us/politics/16court.html


:scared:

Don't come to regret the choice. I guess only time will tell, though.

Like seen here:

http://www.firstamendmentcenter.org/analysis.aspx?id=21093&SearchString=solicitor_general

We'll just have to hope that President Obama wouldn't steer us wrong here. I think he has a good feel for the law.

So Scalia and Stevens agreed on the result and this is proof Kagan is a conservative?

“I doubt she agrees with Justice Stevens, who dissented in Citizens United, and suspect she is a defender of corporate speech rights.”

This article is loaded with speculation.

She made the fucking argument for the FEC, against the corporations.

http://www.law.harvard.edu/news/spotlight/constitutional-law/10_fec.html

For example, recently, an anti-animal-cruelty-speech statute was struck down by all 4 liberals and 4 conservatives. Alito dissented.

The ONLY part I am the slightest bit worried about is campaign finance reform laws. On campaign finance/corporate speech, these cases tend to be decided on party lines more often than most first amendment cases. (Though this is NOT a hard and fast rule: Kathleen Sullivan, the Stanford law school dean, is so liberal that she would likely never be confirmed, yet she thinks most campaign finance reform laws are unconstitutional.)

Kagan's law review article from the 90s makes it sounds like Kagan is somewhat more anti-campaign-finance laws than Stevens. However, this does not mean AT ALL she would vote to uphold Citizens United. Much of that law review article was descriptive of the current legal landscape for these laws, not putting forth a position of what that landscape should be.

My guess is that Kagan would probably vote to throw out laws that prevented individuals from spending unlimited amounts of money in campaigns (as would perhaps 8 current justices). However, when it comes to preventing corporations from spending unlimited amounts of money, my best guess would be that she would uphold restrictions. For example, she told Specter within the past week that she thought the court in Citizens United erred because it did not sufficiently defer to Congress on this issue. She also argued the case. While by itself this doesn't indicate anything (as she was representing the Federal government), she could have chosen to let someone else in her department argue the case (which often occurs), or made less forceful arguments.

everyone can read the tea leaves and everyone will come to a different conclusion.

since obama picked her i assume she`s a solid centrist. one thing is for sure- it`s going to be interesting