Wall Street Journal
WASHINGTON—If Elena Kagan let slip any hint of her legal views during two days of Senate questioning, it may have been the Supreme Court nominee's skepticism toward a broad conception of free expression.
Since the late 1950s, the court has tended to tilt the balance heavily in favor of free expression when interpreting the First Amendment guarantee that "Congress shall make no law…abridging the freedom of speech, or of the press." Its decisions usually have held that hurt feelings, offended sensibilities or even the promulgation of vile ideologies were the price of a robust democracy.
But "the framers actually had a much more constricted view of free-speech principles than anybody does in the current time," Ms. Kagan said this week. "When you read free-speech decisions …they're packed with reference to prior cases rather than reference to some original history."
During Ms. Kagan's career as a scholar and now as solicitor general, she has explored ways in which speech limits could be constitutional. That seemed to remain her focus at confirmation hearings before the Senate Judiciary Committee this week.
Political speech, Ms. Kagan said, "is at the core of the First Amendment" and entitled to the highest protection. Other types of speech might rate lesser degrees of respect, she suggested.
Sen. Amy Klobuchar (D., Minn.) noted that in 1993, Ms. Kagan criticized the Supreme Court's unanimous 1964 decision on freedom of the press, New York Times v. Sullivan, which barred libel suits by public officials unless they could prove the speaker knew what was said was false or had acted with "reckless disregard" for the truth.
"The obvious dark side of the Sullivan standard is that it allows grievous reputational injury to occur without monetary compensation or any other effective remedy," Ms. Kagan wrote, in the passage Ms. Klobuchar cited.
In her testimony, Ms. Kagan said the Sullivan decision was "vital…to a system of free expression." But, she added, "When something goes around the Internet and everybody believes something false about a person, that's a real harm. And the legal system should not pretend that it's not."
Ms. Kagan may share a skepticism of Sullivan with Chief Justice John Roberts. As a Reagan administration official, the future chief justice wrote that the Sullivan standard made it too hard for officials to win libel judgments against the press.
Earlier this year, though, the chief justice rejected her contention that Congress could proscribe new categories of speech when it found their "societal costs" exceeded their "value." Ms. Kagan made a losing argument on behalf of a federal law banning depictions of animal cruelty, which the court struck down in a majority opinion authored by Chief Justice Roberts.
"As a free-floating test for First Amendment coverage," he wrote, the government argument "is startling and dangerous."
If Ms. Kagan is confirmed, it may not be long before she judges free-speech questions. The justices are set to hear a case concerning the free-speech rights of a Christian sect that regularly pickets military funerals with vulgar placards claiming that God has ordained the death of U.S. soldiers to punish America's tolerance of homosexuality.