Kagan's Disturbing Take on Free Speech

Above you may enjoy the spectacle of the brilliant Glenn Greenwald making hamburger out of Obama mouthpiece Greg Craig. (See also this.) Yes, as Greenwald points out, Kagan is a cypher. But there is one great issue on which her views are known. One of her very few published articles is this one, about the proper interpretation of the First Amendment's guarantee of freedom of speech. To me, what we find there is not reassuring.

This article defends two principles, both of which I think are seriously wrong:

1) The test of whether a governmental restriction on speech violates the First Amendment is, not the real-world consequences of the restriction, but the governments motive in imposing it.

2) The only motive that can justify a restriction is that of preventing harm caused by the speech. It should not be backed by what she calls "censorial" or "ideological" motives (p. 421). The harm involved must be "neutrally" conceived, in that we are not acting out of hostility to the ideas expressed in the speech.

Except for the proviso that harm to the government or a politician does not count as a relevant harm here, she leaves the idea of "harm" quite featureless and general. I am grateful for that proviso, for, aside from it, these rules seem clearly too friendly to government restrictions on speech.

Suppose that the government were to ban all electronic means of communication -- all computer modems, cellphones, iphones, blackberries, ipods, ipads, etc. etc. Would this violate our right to freedom of expression? According to Kagan's principle, it would depend on the motive behind the ban. What if all these devices are imported, and the government intends to stimulate the (eventual) growth of a domestic electronics industry? Her first principle would imply that in that case it would not violate our right of free expression. I think most civil libertarians would say that it does, because it is a use of governmental coercion that severely curtails communication. (Hat-tip to Prof. Timothy Hall for this example.)

The civil libertarian view is that our rights limit the means that government may use to pursue its ends, and thus indirectly limits those ends themselves. Kagan's view on the contrary is that government's purposes limit our rights.

Much more disturbing is the second principle. Protection from non-specific "harm" has ever been the motive of the censor and the inquisitor. It is what motivated St. Thomas to advocate that heretics be executed, "severed from the world by death": he only wanted to protect other Christians from having their immortal souls endangered by false doctrine.

Moreover, as the case of Thomas suggests, Kagan's distinction between the motive of fighting off neutrally conceived harm on the one hand and hostility toward ideas on the other is often a distinction without a difference. Whenever we feel the urge to censor "harmful" speech, it is typically the ideas behind the speech -- Communist ideas, racist ideas, heretical ideas -- that do the "harm."