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May 12, 2010

Kagan: You Have the Right To Free Speech, So Long As The Government Decides The Social Harm of Your Speech Doesn't Outweigh the Benefits

“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.”

-- Ellen Kagan, arguing, in her role as Solicitor General for the United States of America, that depictions of animal cruelty were unprotected by the First Amendement

The animal cruelty videos sought to be outlawed were "crush" videos, which feature women either barefoot or in heels crushing and killing small animals (such as mice) and insects.

Yes, apparently there are some guys who get off on this.

There are two mitigating factors to this. First of all, she was writing as Solicitor General, representing her client (the United States), and so her claim does not necessarily reflect her reasoning; however, as we know that lawyers are often compelled by conscience, it seems, to defend terrorists, we also know that lawyers can exercise their prerogative to refuse to make an argument they believe is false or unconstitutional. (Indeed, canons of ethics often require them to do so.)

Even in the US military Kagan hates so much, a soldier is required to disobey a direct order if he believes it is unlawful. Even when lives are on the line.

So, while Kagan wasn't necessarily advancing her own beliefs, we know this statement wasn't so transparently unconstitutional to her to cause her to refrain from making it.

The other mitigating factor is that there are, in fact, broad categories of speech that is unprotected (or much less protected) by the First Amendment -- pornography, famously, although pornography in recent years has pretty much become an empty set, and almost no material, no matter how obscene, will be found to be in that set of less-protected speech.

But within pornography, the subset of child pornography is still very much outside the standard protections of the First Amendment. In many instances such protections make perfect sense -- filming actual children having sex is an illegal act in and of itself, nevermind any later communication of such an act, so that can be outlawed as illegal-in-the-first-instance, and it can be fairly said that each retransmission of the recorded act constitutes a new crime and a new violation of the minors.

But even child porn that doesn't actually involve any children is outlawed (books, cartoons, video simulations), on the tenuous, and potentially catastrophic, theory that such material encourages law-breaking in this area. That precedent is potentially lethal to the First Amendment -- almost all controversial speech is likely to "encourage" some sort of illegal or at least taboo action. That's what makes it controversial.

And given that, that major exception to First Amendment protection ought to be extended to other spheres with utmost caution.

Kagan argued in her brief that cruelty to animals was similarly an interest so compelling as to justify a new unprotected category of free speech.

I can sort of understand the impulse to criminalize barbaric (but expressive) acts. Certainly these are loathsome people, creating and transmitting loathsome images.

But shouldn't someone committed to free expression have some trepidation about establishing the precedent that any speech -- not just a narrow carve-out for child porn -- which creates more "harm" than "benefit" is in fact illegal and punishable by imprisonment? And who actually makes that call?

The First Amendment would wind up protecting popular speech only -- or speech favored by the ruling political establishment, even if it's not generally popular among the public -- and that sort of speech hardly needs any protecting at all.

Kagan's brief is here. (She did not argue this in person before the Court.) The Court's decision is Kagan's argument lost 8-1, in an opinion penned by CJ Roberts.

Dissenting? Sam Alito, actually. Who bought the child-porn exception analogy, and who wrote that the interest here was compelling enough to limit free speech rights. And who, presumably, thought that just one more exception wouldn't be all that dangerous, because of course we can keep it limited to just this exception and that one only.

I don't know -- the thing is, if you buy into the government's reasoning on child porn that doesn't actually harm children directly, you can in fact justify an awful lot of speech which causes "societal harm" in one way or another. I think the important thing is to restrict this sort of thinking to just this one single exception-- okay, we'll fudge the Constitution there a little, because children are so incredibly important, but that's it. Don't take this deviation as precedent and extend it still further.

But given that Alito bought into Kagan's argument, I don't know how much traction criticism of her brief can get.

In another context, Kagan seemed to have more regard for animal life than human life, too.

In 1995 and 1996, future Supreme Court nominee Elena Kagan was involved in a bizarre controversy in which the Clinton White House was accused of siding with an eco-terrorist group locked in a standoff with federal agents deep in the woods of Oregon. The incident led to an investigation by House Republicans, who concluded that a staffer on the White House Council on Environmental Quality tipped off the environmental radicals to impending action by U.S. Forest Service law enforcement agents -- a leak that Forest Service officials believed endangered the lives of their agents on the ground.

Kagan, at the time an associate White House counsel, had no role in leaking the feds' plans to the radicals, but House Committee on Natural Resources investigators concluded she shirked her responsibility by not searching for the source of the leak or pushing for punishment of the leaker.

"Nothing was ever done by Elena Kagan to learn the details about the leaks, or to identify the leaker and ensure that proper punishment occurred," the committee’s 1999 report concluded. In fact, investigators found evidence suggesting that Kagan, in internal White House discussions, defended the alleged leaker.

In fact...

What the House did find, in examining the notes of a Justice Department official involved in the matter, was that a senior CEQ official, a woman named Dinah Bear who had wide contacts in the environmental community, was widely suspected by colleagues of having been the source of the leak.

What role did Kagan play in all of this?...

[A]round July 1996, Kagan and other administration officials learned of the leaks to the protesters and of suspicions that Dinah Bear was the leaker. But nothing happened....

Kagan, the report says, went even further. Investigators found an email from Bear to another official of the CEQ in which Bear wrote, "Elena went out of her way to go to bat for yours truly, which was quite decent of her." When House investigators asked the White House for Kagan's notes of her discussions with Dinah Bear, the White House refused to provide them. A White House lawyer told House investigators that the documents were "subject to claims of attorney-client, work product, deliberative process, and presidential communications privilege, which are subsumed, for these purposes, under the rubric of 'executive privilege.'"

A possible explanation for this is this was Administration kabuki, with Dinah Bear expected to/permitted to/even ordered to leak, in order to scare the enviros out, and Clinton's people didn't want to own up to that, so they just refused to participate.

But that's just speculation. Equally likely is that Dinah Bear leaked on her own, tipped off armed extremists of a coming federal move, and Kagan decided, on her own initiative, that in the case of some sorts of speech, like leaking to lefties, the social benefits outweigh the social harms and so are protected by the First Amendment, even if they're illegal on their face.

Hard Cases Make Bad Law: So says an old truism. The idea that in a hard case -- like child porn -- you will often end up with a bad law, or at least a bad precedent. That is, a hard case will often cause you to go a little apeshit, and bend the Constitution here and there to address the problem -- the hard case.

"Hard cases make bad law" is a general observation, but it has a more particular advisory meaning too: A hard case makes bad precedent, so don't go taking the precedent established for that hard case alone and start expanding it and pretending it has general applicability, because seriously, it doesn't, or at least it shouldn't.

Here are two examples, both relating to the Commerce Clause: During the Depression, the federal government was suddenly discovered to have the power to regulate almost all economic activity, because even if much economic activity was purely intrastate (within the state's boundaries), that trade "affected" interstate commerce indirectly.

The precedent was established because Ohmygod we have to do something! And then extended still further.

The Civil Rights Act made discrimination a federal issue and made it illegal for any business even sorta-kinda near a federal highway or airport to discriminate, claiming that discrimination sorta-kinda hindered interstate travel. Which was true enough. And defensible enough. But later it was expanded to basically give Congress the power to intervene in purely intrastate affairs, because, again, Ohmygod we have to do something!

Ultimately, it just got silly, as they just stopped even pretending to have any sort of genuine constitutional authority for laws:

Daniel v. Paul, 395 U.S. 298 (1969), ruled that the federal government could regulate a recreational facility[serving an almost exclusively intrastate clientele] because three out of the four items sold at its snack bar were purchased from outside the state.

And that sort of thing continued, to the point where the Commerce Clause justified any exertion of power by the federal government you could imagine, including establishing federal gun-free zones around purely local schools. (Well, schools prepare children for work, and work is an economic activity, so within 20 years all these students will be indirectly affecting national commerce, sooo....)

Well, that last one was rolled back, ruled unconstitutional, but they were sort of blindsided to find out that that "We can do whatever we want" precedent had some limits: note that was the first act of federal government ruled to be in violation of federal principles since the New F'n' Deal. From 1936 (or so) to 1995 nothing the federal government did was ever found by the Court to exceed the limits of the Commerce Clause power.

Hard cases created bad precedent, which should not have been extended any further than their original ambit. They started out already pretty bullshitty, justified chiefly by the Ohmygod we have to do something! secret clause of the Constitution, and so were suspect from the outset. But they were treated as precedent as good as any other, and... well, as it currently stands, even with some rollback by more federalism-minded Courts, the Commerce Clause justifies almost anything.

You really have to make sure that exceptions don't swallow the rule. A "social harms balancing test" would surely swallow the whole of the First Amendment, if anyone took child-porn precedent as generally-applicable principle, which, thankfully, they don't.

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posted by Ace at 03:57 PM

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