Elena Kagan has argued, in one of her few substantive law review articles, that the “redistribution of speech” by the government, i.e., restricting the speech of some in order to enhance the speech of others, is not “itself an illegitimate end.” (This restrictive view of the First Amendment is not uncommon among liberal Ivy League law professors.)
Kagan thus argued that the legality of governmental regulation of speech turns on the government’s motive more than the nature or even effect of the regulation.
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.
Does Kagan still believe what she wrote in 1996? If she does, do we want or need a speech-restricting liberal on the Court?
I hope Senators pursue Kagan’s views on intent — specifically, whether or not she intends to be consistent in relying on intent to determine the constitutionality of other forms of discrimination. For example, if she believes there is no discrimination absent invidious intent, she must reject the concept of “disparate impact” racial discrimination root and branch.
Does she? Will anyone in the Senate or the press ask? If anyone (else) asks, will she answer?
