Kagan is anti-free speech. Need we say more? If one Republican votes for this babe, they need to be expunged.

Finally, someone who agreees with Midknight Review. As we have said before, if we know nothing else about Kagan but this, it is enough to reject Kagan out of hand. ---- jds.
Conservative ExaminerAnthony G. Martin

As more hidden information is discovered about Supreme Court nominee Elena Kagan there is increasing cause for alarm. In documents uncovered by CNS, Kagan argued that restricting free speech is a legitimate role of government, provided government can establish the 'proper motive' for doing so.

(AP Photo/J. Scott Applewhite). Elena Kagan

In an article Kagan published in the University of Chicago Law Review in 1996, entitled, 'Private Speech, Public Purpose: the Role of Government Motive in First Amendment Doctrine.' she contends that the negative impact of a law restricting freedom of speech is subservient to the government's motive for enacting such restrictions.

As long as the government can show 'proper intent' in such restrictions on free speech, then the restrictions stand.

The problem with that approach is the very wording of the Constitution itself regarding free speech: 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.'

The very moment government passes laws that restrict the right of the people to speak freely, without recrimination, then it is in violation of both the letter of the law and the original intent of the U.S. Constitution. Thus, any government restriction on free speech is prohibited.

But according to Kagan's 'doctrine' of the First Amendment, government can do exactly that as long as it provides an 'acceptable motive.'

As the article states,

She argued that government can restrict speech if it believes that speech might cause harm, either directly or by inciting others to do harm.

Laws that only incidentally affect speech are constitutional, Kagan said, because the government’s motive in enacting them is not the restriction of First Amendment freedom but the prohibition of some other – unprotected – activity.

The 'slippery slope' of such a point of view is obvious--and quite dangerous.

What if, for example, government decides that speaking against abortion and physicians who practice it incites others to violence, such as the Leftwing claimed in the case of the murder of Dr. Tiller, the baby killer, in Kansas. The Left accused Bill O'Reilly of Fox News of contributing to Dr. Tiller's death simply because his vehement condemnation of Tiller's practice of late-term, partial-birth abortions, may have led someone to kill Tiller.

Does this mean, then, that in Kagan's 'doctrine of the First Amendment,' speech such as O'Reilly's should be restricted?

What if government decides that any and all oral and written communication that refers to individuals in the Obama Administration as 'self-avowed Socialists and Communists' is to be outlawed due to the fact that this speech led to an undue rise in threats of violence on the part of some against government?

These scenarios are not far-fetched. Administration officials and those on the Left have stated those exact things. Tea Party activists, for example, have been blamed by these purveyors of government oppression for all sorts of various and sundry acts that they had absolutely nothing to do with.

But if their speech incites someone to violence, then should government then step in and restrict that speech or ban it altogether?

This is precisely what Kagan appears to advocate. If someone's speech leads someone else to do harm, then that speech should be restricted or banned by government:

“If there is an ‘overabundance’ of an idea in the absence of direct governmental action -- which there well might be when compared with some ideal state of public debate -- then action disfavoring that idea might ‘un-skew,’ rather than skew, public discourse,” Kagan wrote.

Instead, the Supreme Court should focus on whether a speaker’s message is harming the public, argued Kagan in her article.

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.

The bottom line is that Kagan's words, when taken at face value, and compared side-by-side with the U.S. Constitution, prove that this is perhaps the most extremist nominee in the history of the Republic and poses a grave danger to the rights of all citizens.

For commentary on the issues of the day, visit my blog at The Liberty Sphere.

Thanks to for "heads up" to Donald Borsch Jr. on May 13th, 2010 and filed under Donald Borsch Jr., Feature. You can follow any responses to this entry through the RSS 2.0. You can leave a response or trackback to this entry