Following the nomination of Elena Kagan to the U.S. Supreme Court, some free speech advocates painted her First Amendment stance as a concern, which caused a bit of anxiety in the gaming world as Kagan (if confirmed) would have a voice in the SCOTUS review of Entertainment Merchants Association (EMA) v. Schwarzenegger.
New Kagan documents released today by the White House, may cast the nominee in a different light however. AOL News gathered some details from the document dump that could be interpreted to show Kagan as a champion of media. The following are “significant cases” listed by Kagan herself from the time period when she served as an associate at Williams & Connolly from 1989 to 1991:
• Represented the National Enquirer in a libel action brought by a person who had been mistakenly identified in the publication as Jimmy Swaggart's father. She drafted all pleadings and did all discovery in the Louisiana case, eventually settling it on terms favorable to the newspaper.
• Represented the Washington Post and WRC-TV to compel the public release of unredacted transcripts of audiotapes to be received in evidence at a criminal trial.
• Represented Newsweek Inc. on appeal from a jury verdict in its favor in a libel action filed in the Southern District of Mississippi.
• Filed an amicus brief in the U.S. Court of Appeals for the 11th Circuit on behalf of the Recording Industry Association of America and numerous record companies challenging the decision of a district court that a musical recording was obscene under the standard set forth by the Supreme Court in Miller v. California. Wrote Kagan: "I drafted the brief in the case, which stressed the difficulty of holding music obscene under prevailing constitutional law." Her side won the case. (Which Ars points out was actually against disbarred anti-videogame attorney Jack Thompson! [Thanks EZK])
Additionally, the First Amendment Center argues that Kagan’s positioning as Solicitor General should not carry much weight, as her job was “to advance the legal positions of the U.S. government, which often means defending the constitutionality of federal statutes from First Amendment challenge.”
Robert Richards, Director of the Pennsylvania Center for the First Amendment Center, added:
It's difficult, if not unfair, to judge someone on the basis of the positions he or she took as an advocate.
All attorneys are required to represent their sides zealously. It is more instructive to look at potential justices' speeches and writings to get a glimpse into their own ideologies, temperament and philosophy of jurisprudence.
So, perhaps our old friend JT's quip that "Elena Kagan is JT in judicial robes," is off the mark.