Elena Kagan: Threat To Free Speech, Or Zealous Attorney ?

20100512__KaganCongress_051310~2_GALLERYJacob Sullum at Reason expresses concern over Elena Kagan’s views on the proper scope of the First Amendment based on positions that she has argued while serving as Solicitor General:

Defending a 1999 federal ban on depictions of animal cruelty, Kagan boldly asked the Supreme Court to recognize a new category of speech that, along with such historical exceptions as defamation, incitement, and obscenity, is entirely outside the scope of the First Amendment. “Whether a given category of speech enjoys First Amendment protection,” she wrote, “depends upon a categorical balancing of the value of the speech against its societal costs.”

Writing for the 8-to-1 majority, Chief Justice John Roberts called this claim “startling and dangerous,” adding: “The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.”

Kagan took a similarly strong position during oral arguments in the Citizens United campaign finance case:

Defending federal restrictions on political speech by corporations, Kagan tried to paper over an equally startling claim by Deputy Solicitor General Malcolm Stewart, who had told the Court that the Federal Election Commission could ban books in the name of preventing the appearance of corruption. “The government’s answer has changed,” she said during a second round of oral arguments in September. But it later became clear that she agreed with Stewart, athough she tried to reassure the Court by emphasizing that so far the FEC had not tried to ban any books.

Startling positions to take, indeed, and there was at least some indication that the “we can ban books” position that Stewart and Kagan took during oral argument had actually gone a long way toward persuading the Court to rule the other way. The question, though, is whether it’s either proper, or fair, to make determinations about what positions Kagan might take as a Judge based upon the arguments she made as Solicitor General, where she was required by law to defend any federal statute challenged in Court, and required by legal ethics to do so zealously.

The answer, I think, is probably not:

[Kagan’s] 15-month tenure as solicitor general will be scrutinized. But those trying to forecast her potential Supreme Court opinions face a difficult task. The job of solicitor general is to be not a legal philosopher but a lawyer with a client to defend: the United States government.


“It’s a mistake to assume that every argument an SG makes on behalf of the government reflects her personal legal philosophy,” said Lincoln Caplan, who wrote a book about the job, “The Tenth Justice.” “But you can definitely get a feeling from the briefs she submits and the arguments she makes in the Supreme Court for the legal approach she takes and her style of legal reasoning.”

It’s proper, of course, to question Kagan about her views on the issues raised in cases like Citizens United, although the truth is that a combination of post-Bork confirmation rules and judicial ethics are likely to result in a less-than-instructive answer. It’s a mistake, however, to assume that Elena Kagan, or any attorney, completely agrees with every position they’ve taken in a Court of law.

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Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. Wayne says:

    I agree that one can’t draw too much from what position a lawyer takes in a case. However the problem is we have no idea what philosophy or positions she does hold. That was a good part of the problem Conservatives had with Miers. They weren’t confident that she wasn’t another liberal activist in conservative clothing. Liberals didn’t like Miers because she was nominated by Bush and was his friend.

    With all the qualified people out there that we do have inclination on their preposition, there is no reason to nominate these blank slate people unless the Presidents are trying to slip one past us or as a personal favor. Neither of which I care for.

    If she doesn’t give informative answers during the confirmation hearings which she probably won’t or information on her disposition isn’t brought to light, she shouldn’t be confirm.

  2. shane_c says:

    Its frustrating to keep reading these articles about the positions she took as SG and then argue whether that reflects her personal views or whether she was just being a good lawyer etc, etc… when there are essays of her personal views that tell us what she herself really thinks about the First Amendment. Instead of wasting time on what she did as SG people should be reading and analyzing those.

  3. Dodd says:

    I’m not fond of her not disavowing the “the FEC can ban books argument” when she could, but I’ve tried to find something to be scared of in “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” and I just can’t.

    That one sentence doesn’t acknowledge how high the bar is for the balancing test to teeter to prohibition, and is very broadly stated. But it is nevertheless an accurate summary of the baseline position of longstanding precedent. And given that she was charged with defending the statute, she had to take this position.

    I’ve repeatedly made the argument to lefties angry at, say, John Yoo’s supposedly beliefs as divined from his memos that if you ask me to write a memo on what the current state of the law of abortion is, what I write won’t look much like what I would prefer the law to be. Thus you would be wrong to infer my normative preferences from any such memo.

    Lawyers as advocates don’t always get to argue the side they like better. And it’s irritating to have to remind right-wingers of this now that the shoe’s on the other foot.

  4. Dave Schuler says:

    This returns to a point I made in an earlier thread. How important is zealous advocacy as a trait for judges? I’d say not very. However, if you’ve spent your career as an attorney practicing other than as a judge, it’s the trait you’re most expected to cultivate.

    I think that’s a problem. It might not have been in a 19th century world with very literate people but we’re a lot more specialized than that now.