Fresh off his sexist claim that Solicitor General Elena Kagan lacks decisiveness because “she’s a woman,” Rush Limbaugh spent yesterday’s edition of his radio show touting paranoid claims that General Kagan is a threat to free speech:
This is a woman who believes that we ought to have somebody in charge of who can say what. This is a woman who believes that free speech needs to be regulated by an independent body that will decide whether or not what you say is harmful to somebody else, then you can’t say it. Kagan says a government motive is proper focus in a First Amendment case. She backs limits on speech that can do harm.
As Media Matters documents, Limbaugh’s unhinged fantasies about Kagan and the speech police are widely contracted by people who actually know something about the First Amendment. Even Eugene Volokh, a noted right-wing First Amendment scholar, wrote that Kagan displays a “general acceptance of current free speech law…a general comfort with the current precedents, and a lack of desire to shift them much.”
Limbaugh’s right-wing allies point to a brief Kagan wrote as Solicitor General, in which she states that certain speech may not be protected by the First Amendment because of its “societal costs,” as proof that she is eager to “grant government the authority to decide what speech should be permitted.” Had these scaremongers actually bothered to read General Kagan’s brief, however, they would have learned that her views are entirely benign.
Under existing law, the Supreme Court recognizes a handful of extraordinarily harmful forms of communication — obscenity, incitements to immediate violence and child pornography, to name a few — which are not protected by the First Amendment. The brief Kagan’s opponents cite concerns a law intended to ban so-called “crush videos,” fetish videos which depict women slowly crushing animals to death for the sexual gratification of the viewer. (The Supreme Court eventually struck down the law at issue in this case for being too loosely drafted, but left open the possibility that a law tailored specifically toward banning crush videos would be upheld).
If Limbaugh and his ilk want to argue that child porn and crush videos should be legal, that is their right under the First Amendment, but bans on such exploitation hardly place America on a slippery slope to “speech panels.” Limbaugh is simply wrong to claim that Kagan would support such a thing.
In her seminal article on the First Amendment, “Private Speech, Public Purpose: The Role of Government Motive in First Amendment Doctrine,” Kagan does list several rules which, as she understands First Amendment law, guide courts in weighing free speech cases. Among them:
- “[T]he government may not restrict expressive activities because it disagrees with or disapproves of the ideas espoused by the speaker.”
- “[T]he government may not restrict speech because the ideas espoused threaten officials own self-interest–more particularly, their tenure in office.”
- “[T]he government may not privilege either ideas it favors or ideas advancing its self-interest.”
- “[T]he government may not limit speech because other citizens deem the ideas offered to be wrong or offensive–or for that matter, because they see the ideas as threatening to incumbent officials.”
So public officials cannot ban speech because they disagree with it. They cannot ban speech that makes voters less likely to support them, and they cannot ban speech simply because it offends someone. In other words, Kagan’s view of the First Amendment is actually the opposite of what Limbaugh says it is.