Can Free Speech Be Redistributed?

This article appeared on Cato​.org on May 22, 2010.
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Were I on the Senate Judiciary Committee, in my first round of questioning I would focus on Supreme Court nominee Elena Kagan’s record regarding the First Amendment right to criticize our government.

Last September, Kagan — then Obama’s solicitor general — appearing before the High Court in Citizens United v. Federal Election Commission, argued the government’s case for imposing limits on corporations’ political speech.

Chief Justice John Roberts asked Kagan how she far thought the government should be allowed to go in curbing corporate political speech.

She had said, he noted, that she would not go so far as to censor books.

But what about pamphlets? he wondered.

This is how the former dean of the Harvard Law School and a former clerk of Justice Thurgood Marshall answered: “I think a pamphlet would be different. A pamphlet is pretty classic electioneering.”

Pamphlets played a key role in how we became the United States of America — including Tom Paine’s Common Sense and The Crisis; John Dickinson’s Letters from a Farmer in Pennsylvania, and Samuel Adams’ The Rights of the Colonists, among others.

Later rejecting Kagan’s argument, Roberts noted that the government had taken a position, as argued by Kagan, that embraced “a theory of the First Amendment that would allow censorship not only of television and radio broadcasts, but of pamphlets.”

I know that a solicitor general is required to argue the legal positions of the administration that hired her — but to this extent?

I’d also like to know how a Supreme Court Justice Kagan would react to those in the Obama administration who urge more “media diversity” — their poorly disguised attempt to return to the Fairness Doctrine, whereby the Federal Communications Commission could revoke the license of a radio or TV station that was not being “fair” in its distribution of political views.

Last year, the Obama FCC set up an Advisory Committee for Communications on the Digital Age. (Rush Limbaugh, be prepared.) Also last year, Senate Rules Committee Chairwoman Dianne Feinstein, D‐​Calif., declared that government has “a responsibility to see that both sides, and not just one side, of the big public questions of the day are aired…with some modicum of fairness.”

She wanted to “look at the legal and constitutional aspects of bringing back the Fairness Doctrine” in some form. Or as Barack Obama pithily put it: “You can’t just listen to Rush Limbaugh and get things done.” (Both quotes are in Shut Up America! by Brad O’Leary, WND Books, 2009).

In a 1996 article in the University of Chicago Law Review, Kagan wrote that if there is an “an overabundance” of expressions on one side of an issue in public discourse, government is justified in stepping in to impose balance.

Some of her critics have concluded from these words that Obama’s latest nominee to the high court favors government “redistribution” of free speech.

Nat Hentoff

Nat Hentoff is a member of the Reporters Committee for Freedom of the Press and a senior fellow with the Cato Institute, a libertarian think tank.