Elena Kagan and the 1st Amendment

Reasons for Concern
By JULIE HILDEN

During last week's Supreme Court confirmation hearings, U.S. Solicitor General and nominee Elena Kagan made a number of comments relating to the First Amendment -- which were then compiled by the First Amendment Center. In this column, I'll consider what we can glean from Kagan's views in this area.

Kagan on Cameras at the Supreme Court

Laudably, Kagan strongly endorsed the idea of having cameras in the Supreme Court. But this is only the tip of the iceberg of the cameras-in-court issue -- and it is the easy case.

Having cameras in trial-court courtrooms poses some risks -- for instance, the risk of inadvertently revealing jurors' identities. In contrast, having cameras in appellate courtrooms, including in the Supreme Court, has virtually no downside at all. Viewers will only see what visitors already see. And Americans who can never make the trip to Washington, D.C. -- whether due to modest means, hometown commitments, disability, illness, or other reasons -- will still get to have the precious experience of attending a Supreme Court oral argument.

It is precisely because this issue is a no-brainer that Kagan could effuse that "It would be a great thing for the Court, and it would be a great thing for the American people." None of her other answers on First Amendment topics was quite as unequivocal.

Kagan on Campaign-Finance Restrictions

Kagan's comments on campaign-finance restrictions and the First Amendment were purposely unrevealing. As FindLaw columnist Vikram Amar explained, Kagan earlier wrote a law-review essay that encouraged the aggressive, substantive questioning of Supreme Court nominees. Yet Kagan, as nominee, still gave non-answer answers on the topic of campaign-finance legislation and, in particular, on the topic of the Court's recent decision striking downparts of the federal campaign-finance law.

Kagan had argued, as Solicitor General, in favor of the Court's upholding the law, and she noted that she had felt that, as an advocate, she was given "a strong case to make." She also commented that the case was "settled law." But these are empty banalities. It's extremely rare that a case makes its way to the Court without both sides having something important and potentially persuasive to say; the Supreme Court chooses its cases, and rarely do the Justices opt for one that is going to be a walkover. And by definition, every decision the Court makes is "settled law" -- until it is not, because the Justices say it is not. The Court's very job, after all, is to settle the law.

On the campaign-finance topic, Kagan also refused to "take off the advocate's hat and put on the judge's hat." That stance is troubling, though, for Kagan has never been a judge, and surely we deserve some insight into what kind of judge she will be. That is the kind of insight that a history of prior judging -- such as existed, for instance, in the case of now-Justice Sonia Sotomayor -- typically provides. Lacking any such history, Kagan should have at least been willing to "put on the judge's hat" for her Senate questioning.

To be fair to Kagan, every Supreme Court nominee since the disastrously candid Bork hearings has given empty answers and offered banal comments that were lacking in insight. But as Vikram Amar has argued, one could at least have hoped that Kagan -- whose own essay reveals that she clearly sees the wrongness in this practice, and whose lack of judicial experience provides a special reason for candor -- might break the pattern.

Kagan on the Law of Libel

Kagan's comments on libel law were, in my view, a bit disturbing. Kagan gave a nod to the First Amendment implications of libel law, but she also heavily emphasized the other side of the equation -- stating that " we should also appreciate that people who did nothing to ask for trouble … can be greatly harmed when something goes around the Internet, and everybody believes something false about a person. … That's a real harm, and the legal system should not pretend that it's not."

Granted, Kagan's questioner had asked her if she favored "balance" in this area of law -- and it's hard to argue against "balance. And granted, people can indeed be harmed by Internet falsities. But Kagan's response, itself, would have been much more balanced had she also acknowledged the ways in which the Internet allows those who are not celebrities or public figures to debunk false allegations.

From a libel perspective, the Internet is a double-edged sword -- providing both the opportunity to libel widely, and the opportunity to respond widely. Indeed, as I noted in a recent column drawing on a New York Observer article, some ascribe the recent, stark drop in libel suits against media entities to the Internet's ability to give everyone an effective podium. For the libel victim, it helps, especially, that Google and other search engines tend to unearth both the libel and the reply.

Kagan's response was also unnecessarily hyperbolic. Even the strongest First Amendment advocates don't claim that harm to reputation isn't "a real harm," and key Supreme Court precedents like New York Times Co. v. Sullivan certainly don't imply anything of the kind. What they do imply is that honoring the First Amendment may, in some cases, be more important than addressing this very genuine harm. Thus, in her answer, Kagan simply created a straw man -- a legal system that falsely pretends that libels don't do "real harm" to reputation -- and knocked it down. But that isn't the legal system that we have -- not remotely.

In reality, Supreme Court precedent is quite clear that the choice between protecting reputation and protecting speech is brutal, a choice between averting two very real harms. But it also recognizes that free speech alone enjoys the protection of a constitutional amendment.

In sum, it's worrisome that when asked about libel, Kagan dwelt on reputation, not free speech. Let's hope that it was the question regarding "balance," and not Kagan's own inclinations, that led to this skewed emphasis. If Kagan does indeed value reputation over free speech, that view could ramify into other areas of law -- for instance, leading her to over-value privacy.

Kagan Versus Franken on Antitrust and the First Amendment

Like Kagan's comments on libel law, her exchange with Senator Al Franken on antitrust and the First Amendment suggested that Kagan may not see what is now happening in the media world as truly revolutionary -- revolutionary enough to possibly call for legal changes to mirror changing practical realities. However, I think that many, many people would disagree with her on that point.

In questioning Kagan, Franken insisted that the First Amendment should play a role in issues such as media consolidation and Net neutrality -- such that the Court's review of antitrust issues could also trigger the First Amendment. But Kagan -- in one of the very few definitive answers she gave relating to free speech -- categorically resisted any First-Amendment-law role here, though she did see a place for "First Amendment values."

In her answer, Kagan also indicated an inclination to defer to those "who know a lot more about antitrust policy than I do."

Unfortunately, these two stances, put together, make it sound like Justice Kagan will be more or less a rubber-stamp for government antitrust policy. We need more searching review from the Justices in an era of rapid technological and media-industry change. The Justices may still end up agreeing with regulators the lion's share of the time, but they need, now more than ever, to at least start off with a close look at the basis for policy.

Finally, to see issues like the ones Franken has raised as being strictly antitrust issues is, I believe, a seriously blinkered way of seeing what is a truly new media landscape. The heavy-handed fairness doctrine -- which I strongly oppose -- once gave government intervention in free-speech markets a bad name. But that is only one kind of tool -- a kind of forced speech. Other tools -- such as playing-field-leveling strategies -- may be much more attractive from a First Amendment perspective.

In sum, it seems very possible that, in the Internet Age, the government may want to intervene to address media-market problems that are not just antitrust problems, but, in practice, First Amendment problems too. Let's hope that Justice Kagan, when she is confirmed -- as it seems she will be -- keeps a more open mind about these issues than she has displayed as a nominee.

Julie Hilden practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. She is the author of a memoir, The Bad Daughter and a novel Three. She can be reached through her website.