Scholar: 'Concern' Over Supremes Nominee Kagan's First Amendment Record

During her tenure as solicitor general, Elena Kagan advanced some arguments that have caused concern to some First Amendment advocates.

For example, in United States v. Stevens (2010), President Barack Obama's new nominee for the Supreme Court seat of retiring Justice John Paul Stevens defended the constitutionality of a very broad law that criminalized the depiction of animal cruelty. Kagan argued in the government’s brief that speech was entitled to no First Amendment protection if its harms outweigh its benefits: “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.” Kagan did not argue the case before the Court.

The Court ultimately rejected the government’s argument for creating a new unprotected category of speech, ruling April 20 that the law was unconstitutionally overbroad.

Kagan argued on behalf of the federal government in defense of corporate spending limits in oral arguments in Citizens United v. Federal Election Commission. She stressed that Congress had long regulated corporate spending and that Congress’ regulations on even nonprofit corporations were put in place to ensure that they “don’t function as conduits for for-profit corporations.” The Court invalidated the challenged regulations limiting corporate spending in federal elections in its Jan. 21 decision.

In a religious-liberty case, Salazar v. Buono, Kagan also appeared before the justices. The case involved a challenge to a federal law that sanctioned the transfer of a cross and the land on which it stood — a public park — to a private property owner. In her oral arguments, Kagan contended that the establishment clause did not prohibit “the sensible action” of Congress in divesting the federal government of the property.

The Supreme Court agreed with Kagan and upheld the federal statute in its April 28 decision.

She also defended a federal statute that prohibits material assistance to terrorist groups in Holder v. Humanitarian Law Project. Kagan argued that “Congress reasonably decided that when you help a terrorist — foreign terrorist organization’s legal activities, you’re helping the foreign terrorist organization’s illegal activities.” The Court has not ruled in this case yet.

Kagan’s job as solicitor general is to advance the legal positions of the U.S. government, which often means defending the constitutionality of federal statutes from First Amendment challenge.

First Amendment advocates should consider the arguments Kagan advanced as solicitor general, but shouldn’t assume that she would hold such positions as a justice. The roles of advocate and judge are quite different.

“It's difficult, if not unfair, to judge someone on the basis of the positions he or she took as an advocate,” said Robert Richards, director of the Pennsylvania Center for the First Amendment Center. “All attorneys are required to represent their sides zealously. It is more instructive to look at potential justices' speeches and writings to get a glimpse into their own ideologies, temperament and philosophy of jurisprudence.”