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2010-05-11 Home Front: Politix

Kagan: Speech is free if government decides it has more value than 'societal costs'

Freedom of speech, religion and other First Amendment issues are likely to be among the most visible during the coming Senate confirmation hearings on President Obama's nomination of Solicitor General Elena Kagan for the U.S. Supreme Court.

As an illustration why, consider this quote dug up by the First Amendment Center's David L. Hudson, who found it in a government brief signed by Kagan in United States v Stevens: Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.'

The case concerned a statute that made it criiminally unlawful to depict animal cruelty. The Court rejected Kagan's reasoning, but had the justices accepted her assertion, it would have effectively repealed the First Amendment's protection of speech and replaced it by granting government the authority to decide what speech should be permitted.

You can read the entirety of Kagan's brief here, and additional analysis by Hudson of Kagan's record on First Amendment issues here.

Posted by ed 2010-05-11 14:29|| || Front Page|| [11133 views ] Top

#1 The 1st Amendment only applies depending upon whether or not the government decides so? Seems to me this is dangerous legal ground to tread on. Cost benefit analysis applied to the 1st Amendment? Who decides benefits? Who decides societal costs?

Posted by JohnQC 2010-05-11 15:22|| 2010-05-11 15:22|| Front Page Top

#2 Our founding fathers are shaking their heads in disgust.

Posted by DarthVader 2010-05-11 16:11|| 2010-05-11 16:11|| Front Page Top

#3 Kagan and Napalotano...any relation, or do they both just like butchy haircuts?

Posted by Besoeker 2010-05-11 16:30|| 2010-05-11 16:30|| Front Page Top

#4 Sure would be nice if a Pub senator called her on this one at the confirmation hearing.

Posted by Steve White 2010-05-11 17:31|| 2010-05-11 17:31|| Front Page Top

#5 The reason the SCOTUS overturned that law was because it was written in a duplicitous manner, to placate PETA-type nuts. The law was so broad it would outlaw hunting and fishing videos, and because "animal cruelty" is a flexible standard, anytime it got a new definition, videos of that new definition would be automatically outlawed.

For example, more agitators than PETA hate circuses that feature animals, and often press to have them prohibited. And they have been, in some cities. If even a single State outlawed animal circuses, an argument could be made to ban any movies made in a circus of animals.

While the PETA nuts are fine with that, it would violate the hell out of the first amendment.

It should also be noted that the SCOTUS did say they were open to the idea of a law that would *specifically* ban stomping videos. But that was not the purpose of the exercise in the first place, just the excuse.

Posted by Anonymoose 2010-05-11 19:50|| 2010-05-11 19:50|| Front Page Top

#6 Anymoose cuts to the heart of it.

I'm glad the SCOTUS overturned that crap. Free speech is free speech. No yelling "FIRE" in a theater, but pretty much anything else is fair game.

I don't agree with selling the videos, but the states can have laws against "excessive" abuse so the hunting and fishing ones would be ok. Either way, it isn't a First Amendment issue and the fact that someone is willing to put limits on free speech for "societal costs" leaves me wanting to pull their teeth out with pliers. <--Protected speech BTW, you fascist fuckholes

Posted by DarthVader 2010-05-11 20:00|| 2010-05-11 20:00|| Front Page Top

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