Solicitor-general nominee: impressive First Amendment resume

By David L. Hudson Jr.
First Amendment scholar

President-elect Barack Obama’s nominee for U.S. solicitor general — Harvard Law School Dean Elena Kagan — has an impressive pro-First Amendment record of scholarship.

An academic who also worked in the Clinton administration, Kagan wrote a number of First Amendment-related law-review articles while teaching at the University of Chicago Law School in the 1990s. In those articles, Kagan — who clerked for the late Justice Thurgood Marshall — has tackled such issues and doctrines as hate speech, pornography, viewpoint discrimination, secondary effects and more.

Kagan's articles include:

  • “The Changing Faces of First Amendment Neutrality: R.A.V. v St. Paul, Rust v Sullivan, and the Problem of Content-Based Underinclusion,” in The Supreme Court Review, 1992.

  • “Regulation of Hate Speech and Pornography After R.A.V.,” University of Chicago Law Review, 1993.

  • “When a Speech Code is a Speech Code: The Stanford Policy and the Theory of Incidental Restraints,” U.C. Davis Law Review, 1996.

  • “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine,” University of Chicago Law Review, 1996.

    In her 1993 University of Chicago Law Review piece, she wrote that proposed regulations on hate speech and pornography failed to adhere to the fundamental First Amendment principle of viewpoint neutrality — that the government cannot favor certain private speakers or viewpoints over others.

    Her 1996 article on government motive in First Amendment cases has been cited more than 115 times — an enviably high number for a secondary source. In that article she declares that “the application of First Amendment law is best understood and most readily explained as a kind of motive-hunting.”

    Helen Norton, a University of Colorado law professor and First Amendment scholar, told the First Amendment Center Online that Kagan’s  article "proposes — and then persuasively supports — a coherent explanatory theory of the Supreme Court’s First Amendment doctrine: that ‘most of First Amendment doctrine constitutes a highly, but necessarily, complex scheme for ascertaining the governmental purposes underlying regulations of speech.’ It is extremely well-written and theoretically ambitious (without over-claiming) and is very useful to both scholars and practitioners who seek to make sense of a body of law that often appears convoluted.”

    Also in that article, Kagan contends that many of the Court’s doctrines, such as the content-discrimination principle, viewpoint neutrality and even the secondary-effects doctrine, all deal in varying degrees with ferreting out impermissible government motives. Kagan criticizes the secondary-effects doctrine under which government officials have labeled restrictions on sexually oriented expression as content-neutral rather than content-based. In First Amendment law, content-neutral laws are subject to a lower level of judicial review (called intermediate scrutiny) than content-based laws, which are subject to strict scrutiny. Justice David Souter once wrote: “Strict scrutiny leaves few survivors.” Kagan writes that “the secondary effects doctrine fits uneasily with the rest of First Amendment jurisprudence.”

    Plaudits such as Norton's offer perhaps the best evidence of the quality and depth of Kagan’s First Amendment scholarship. Other colleagues in academia committed to explaining First Amendment jurisprudence have also noted her work.

    Harvard law professor Laurence Tribe — who has published extensively on the First Amendment and argued numerous First Amendment cases before the Supreme Court — told the First Amendment Center Online: “Elena Kagan’s First Amendment scholarship has been both insightful and influential. As with every other topic she touches, this one has been brightly illuminated by her examination of it.”

    Christina Wells, a University of Missouri law professor who teaches free-speech issues and publishes extensively in the field, offered similar sentiments: “I am very impressed with the quality of Dean Kagan’s work in the free speech area, which I believe is quite thoughtful and nuanced. She is enormously talented at seeing relationships among seemingly disparate strands of free speech jurisprudence, which has allowed her to gain a broader understanding of the jurisprudence as a whole rather than simply arguing from a particular stance on a particular topic. … Her articles are among a handful of free speech authors that I keep around for frequent reference when I write.”

    Norton, arguably the country’s leading scholar on the government-speech doctrine, called Kagan’s scholarship on that subject “extremely insightful in examining the intricacies and contradictions of the Court’s First Amendment jurisprudence.”

    It's interesting to note that William Howard Taft, Stanley Reed, Robert H. Jackson and Marshall all held the esteemed position of U.S. solicitor general at some point in their legal careers before ascending to the Supreme Court. The solicitor-general position has proven fertile ground for possible Supreme Court nominees and, if nothing else, affords frequent access to the high court. Some have even labeled the solicitor general as “the 10th justice,” given that official's frequent arguments — often solicited by the justices — before the Court. Lincoln Caplan wrote a well-received book on the office, The Tenth Justice: The Solicitor General and the Rule of Law. Other legal luminaries to have held the position include Erwin Griswold, Archibald Cox, Kenneth W. Starr, Theodore B. Olson and Robert Bork (who later was nominated for the U.S. Supreme Court by President Ronald Reagan).

    The nomination process has become fraught with uncertainty as ideological battles sometimes predominate over honest appraisals on a person’s experience and credentials. Whether confirmed or not, Kagan certainly possesses a deep understanding of the first 45 words of the Bill of Rights.