Kagan is weak on the First Amendment

May 18, 2010

It was refreshing to see The Sun's position in its letter to President Obama this morning ("Thanks for the letters, Mr. Obama" May 18).

President Obama, in announcing Elena Kagan as his Supreme Court choice, apparently alluding to her role in the Citizens United case, said "...powerful interests must not be allowed to drown out the voices of ordinary citizens."

This refers to a second round of oral arguments last September in the Citizens United case, which Ms. Kagan and the U.S. government ultimately lost and the First Amendment won, when it became apparent that Elena Kagan holds that banning political speech can be constitutional.

Ms. Kagan argued that "the application of First Amendment law is best understood and most readily explained as a kind of motive-hunting." If the motive is compelling enough, in other words, the government can regulate speech in the name of the public good. The view that "the government may never subject particular ideas to disadvantage" is mistaken, Kagan wrote. "The government indeed may do so, if acting upon neutral, harm-based reasons." Again, it is the government that decides if, say, a talk radio host or tea party member is doing "harm" by engaging in political speech that allegedly incites some wacko to violence.

In my opinion, with little else to go on, this raises a serious objection to her support for the Constitution and therefore her confirmation.

Benedict Frederick Jr., Pasadena

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