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Kagan Argued for Government ‘Redistribution of Speech’

Posted By admin On May 12, 2010 @ 12:29 pm In Featured Stories | Comments Disabled

Matt Cover
CNS News [1]
Wednesday, May 12, 2010

RELATED: Kagan: ‘Disappear’ Free Speech If The Government Deems It Offensive [2]

(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.” [3]

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.


Kagan Argued for Government Redistribution of Speech 260310banner2 [4]

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.

Full story here. [1]

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URLs in this post:

[1] CNS News: http://cnsnews.com/news/article/65720

[2] Kagan: ‘Disappear’ Free Speech If The Government Deems It Offensive : http://www.prisonplanet.com../kagan-disappear-free-speech-if-the-government-deems-it-offensive.html

[3] “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine.”: http://www.scotusblog.com/wp-content/uploads/2010/03/Private-Speech-Public-Purpose.pdf

[4] Image: http://purewaterfreedom.com/

[5] Senator: Kagan Argued Government Could Ban Books: http://www.prisonplanet.com/senator-kagan-argued-government-could-ban-books.html

[6] Kagan Argued Against Second Amendment In Gun Case: http://www.prisonplanet.com/kagan-on-second-amendment-like-freedom-of-speech-enjoys-%e2%80%9cstrong-but-not-unlimited-protection%e2%80%9d.html

[7] Kagan: ‘Disappear’ Free Speech If The Government Deems It Offensive: http://www.prisonplanet.com/kagan-disappear-free-speech-if-the-government-deems-it-offensive.html

[8] Republican Tea Party Hedges on Rejecting Enemy of the Constitution Kagan: http://www.prisonplanet.com/republican-tea-party-hedges-on-rejecting-enemy-of-the-constitution-kagan.html

[9] Sworn Enemy Of America Kagan Confirmed As Supreme Court Nominee: http://www.prisonplanet.com/sworn-enemy-of-america-kagan-confirmed-as-supreme-court-nominee.html

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