Whose harm?

Today's news brings a discussion of one of the few articles that supreme Court nominee Elena Kagan has written. This one deals with a framework for deciding free speech cases where the determination of the constitutioinality of a law restricting free speech is based upon the intent of the government in passing the restriction. Kagan also says that speech causing harm can be restricted. While she does not give a full explanation of what type of speech causes harm, she does give examples including incitement to violence, hate-speech, and threatening or “fighting” words.

I have to say that Kagan's article gives me pause with regard to her respect for the first amendment. A determination based upon governmental intent is, in reality, one that is based upon what some judge thinks the intent of the government really was. Particularly since a government, unlike an individual does not have a mind in which to form an intent, the court would be left perusing the congressional record to determine intent. One rogue speech would be all that would be necessary for a judge to find improper intent or, conversely, proper intent for a law. Such a subjective standard basically gives the court the ability to strike down those laws they do not like and to uphold those laws that they do, while giving legislators no ability to discern the constitutionality of proposed statutes.

The banning of speech that causes harm is also problematic. Hate speech is perhaps the best example. Can a law ban people from calling another person an idiot? That may be hateful and therefore capable of being banned under the Kagan structure. Maybe Kagan wants the "hate speech" to be only that which applies to minority groups. That construct, however, also is morethan problematic. Can it be permissable for the government to ban the use of the N word but impermissable for the same government to ban balcks from calling a white person a red neck or a cracker? Again, that makes no sense. Can it be that Hate speech is anything that makes the person hearing the words upset? No.

Let's go to the granddaddy of all liberal free speech points: flag burning. When the demonstators at some even burn an American flag, they do so for the express purpose of injuring the sensibilities of those who respect the flag and what it stands for. Does Kagan mean that the government could ban such speech -- you can bet not.

so what does Kagan's construct actually mean? Only this: if the court likes the restriction, it can uphold it. If the court does not like the restriction on speech, it can strike it down. In other words, the judge's political and emotional reaction is what will control.

This is clearly not a responsible way to go. Indeed, for me it calls into quesiton Kagan's ability to functin as a supreme court justice.