The REASON Obamao picked his old radical friend, Kagan
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Odd, the leftists were ALL ABOUT unfettered free speech.
Til now. NOW, they want action to STOP it everywhere it occurs.
Because, now, the shoe is on the other foot, and they DON'T LIKE IT.
How can they keep power, when the free speech rights they used to GET power,
is still in effect?
They plan to quelch it as much as they can, at every turn.
If Kagan gets into the SC, we are in for big, big trouble, FASTER.
(I'm sure the Obamao Mafiao will think this post "hurts the public")@@
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Kagan Argued for Government 'Redistribution of Speech'
Wednesday, May 12, 2010
(CNSNews.com) – Supreme Court nominee Elena Kagan said the high court should be focused on ferreting out improper governmental motives when deciding First Amendment cases, arguing that the government’s reasons for restricting free speech were what mattered most and not necessarily the effect of those restrictions on speech.
Kagan, the solicitor general of the United States under President Obama, expressed that idea in her 1996 article in the University of Chicago Law Review entitled, “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine.”
In her article, 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.
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.”
Kagan notes, however, that such “redistribution of speech” is not “itself an illegitimate end,” but that government may not restrict it to protect incumbent politicians or because it dislikes a particular speaker or a particular message.
The U.S. Supreme Court (AP File Photo/Evan Vucci)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.
She argues in the piece that a law banning fires in public places is not unconstitutional, even if it means that protesters cannot burn flags in public. A law outlawing flag burning protests, however, would be, because the motive is to stop a particular protest.
Kagan also argued that the Supreme Court should not be concerned with maintaining or protecting any marketplace of ideas because it is impossible for the court to determine what constitutes an ideal marketplace, contending that other types of laws, such as property laws, can also affect the structure of the marketplace of ideas and that a restriction on speech may “un-skew” the market, rather than tilt it unfavorably.
“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 government, she concludes, may not express its disfavor with an opinion or speaker by burdening them with restrictions or prohibitions, unless it can show that their speech is causing some type of public harm.
“The doctrine of impermissible motive, viewed in this light, holds that the government may not signify disrespect for certain ideas and respect for others through burdens on expression,” Kagan wrote. “This does not mean that the government may never subject particular ideas to disadvantage. The government indeed may do so, if acting upon neutral, harm-based reasons.”
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.”
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I'm assuming he thinks she will place her (and his) personal values above whtever the creators of the constitution intended.
And he figures that with absolutely no judicial experience and very litt;e paper trail (along with a huge huose majority) he has an acolyte for thirty years.
And the bonus: since the left is trying to "out" her he can cry homophobia if anyone dare question the nomination.
WSS
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Say, where is Heck to deny it?
By his silence maybe.
Silence is golden when you're ignorant and rejecting reality.
And the reality is, Kagan has UNCONSTITUTIONAL baggage.
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But WAIT ! Here's MORE !
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Kagan Was ‘Not Sympathetic’ as Law Clerk to Gun-Rights Argument
Share Business ExchangeTwitterFacebook| Email | Print | A A A By Greg Stohr and Kristin Jensen
May 13 (Bloomberg) -- Elena Kagan said as a U.S. Supreme Court law clerk in 1987 that she was “not sympathetic” toward a man who contended that his constitutional rights were violated when he was convicted for carrying an unlicensed pistol.
Kagan, whom President Barack Obama nominated to the high court this week, made the comment to Justice Thurgood Marshall, urging him in a one-paragraph memo to vote against hearing the District of Columbia man’s appeal.
The man’s “sole contention is that the District of Columbia’s firearms statutes violate his constitutional right to ‘keep and bear arms,’” Kagan wrote. “I’m not sympathetic.”
Kagan, currently the U.S. solicitor general, has made few public remarks about the Constitution’s Second Amendment. The Supreme Court in 2008 ruled, in a case that overturned the District of Columbia’s handgun ban, that the Constitution protects individual gun rights.
As a nominee to be solicitor general last year, Kagan told lawmakers that she accepted that 5-4 decision in District of Columbia v. Heller as a precedent of the court.
“There is no question, after Heller, that the Second Amendment guarantees individuals the right to keep and bear arms and that this right, like others in the Constitution, provides strong although not unlimited protection against governmental regulation,” she said.
Review Denied
The Heller decision left room for states to require registration of weapons. The majority also said the ruling didn’t cast doubt on laws barring handgun possession by convicted felons and the mentally ill, or restrictions on bringing guns into schools or government buildings.
The lower court ruling in the 1987 case, issued by the District of Columbia’s highest court, said the Second Amendment protects only the rights of states to raise militias, and not individual gun rights. The ruling upheld Lee Sandidge’s conviction for carrying a pistol without a license, possession of an unregistered firearm and unlawful possession of ammunition.
The high court refused to hear the case, known as Sandidge v. United States. The memo to Marshall, found in his papers at the Library of Congress, includes a handwritten “D,” indicating that he was among those who voted to deny review.
White House spokesman Ben LaBolt said the position taken in the memo to Marshall reflected the prevailing view of the law at the time.
Reflecting Marshall
During her confirmation hearing to be solicitor general, the federal government’s top Supreme Court advocate, Kagan said she was trying to reflect Marshall’s views when she evaluated so-called petitions for certiorari, or cert petitions. She called herself a “27-year-old pipsqueak” working for a “90- year-old giant in the law.”
“He was asking us, in the context in those cert petitions, to channel him and to think about what cases he would want the court to decide,” Kagan said. “And in that context, I think all of us were right to say, ‘Here are the cases which the court is likely to do good things with from your perspective, and here are the ones where they’re not.’”
Marshall was a civil rights icon before becoming the first black justice. He led the legal fight to dismantle the “separate but equal” regime in public education, arguing the landmark Brown v. Board of Education case.
As a justice, he opposed the death penalty and backed abortion rights and affirmative action. Kagan, now 50, clerked for Marshall during the court’s 1987-88 term and has described him as one of her heroes.
Clues to Kagan
The memos provide clues to Kagan’s potential approach as a justice. Much like Marshall, Kagan might find herself playing defense, at least in her first few years, working strategically to thwart the agenda of a more conservative majority.
Kagan on numerous occasions urged the justice to vote for so-called defensive denials, rejecting appeals from criminal suspects and defendants to prevent his more conservative colleagues from giving more power to police and prosecutors.
She urged rejection of an appeal from an Illinois man whose burglary conviction hinged on evidence discovered when he was stopped, ordered to lie down and searched by police. The search took place even though police lacked the “probable cause” required to make an arrest, Kagan said.
Kagan said she thought the court, if it heard the case, would uphold the conviction. That “would be an awful and perhaps quite consequential holding,” she wrote.
In recent years, Chief Justice John Roberts and four colleagues have joined forces in 5-4 decisions to strike down campaign finance regulations and limit shareholder lawsuits, as well as to protect gun owners’ rights.
B-Minus in Torts
The Marshall papers also include Kagan’s Harvard Law School transcript and glowing letters of recommendation to the justice from her professors. “She is soft-spoken and delightful to be with, but razor-sharp and iron-hard in intellectual give and take,” wrote one, Abram Chayes.
One professor referenced her transcript, which showed Kagan got off to a slow start as a law student. She received a B in criminal law and a B-minus in torts in the fall of her first year, later receiving predominantly A’s in classes including constitutional law.
“Whatever was in her way on those fall term exams, it wasn’t affecting her class performance even during the fall, and evidently was gone by exam time in May,” wrote Frank Michelman, who taught her in a spring property law course and said he had contact with his students starting in September.
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