Jury Still Out on Kagan’s First Amendment Stance

May 19, 2010 -

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.


Thanks Christopher!


Comments

Re: Jury Still Out on Kagan’s First Amendment Stance

Another thing to consider regarding Kagan: She says that the Supreme Court "made the correct decision" in United States v. Eichman(flag-burning case):

http://volokh.com/2010/05/12/one-thing-we-know-about-elena-kagans-views-on-particular-free-speech-cases/

Still doesn't say one way or the other how she'd rule, but another glimmer of hope for Free Speech.

Geaux Saints, Geaux Tigers, Geaux Hornets, Jack Thompson can geaux chase a chupacabra. Hell will stay frozen over for quite a while since the Saints won the Super Bowl.

Geaux Saints, Geaux Tigers, Geaux Pelicans. Even through the darkest days, this fire burns always.

Re: Jury Still Out on Kagan’s First Amendment Stance

So, perhaps our old friend JT's quip that "Elena Kagan is JT in judicial robes," is off the mark.

When and where did he say this?

Re: Jury Still Out on Kagan’s First Amendment Stance

I think, as has been noted ad nauseam, that the biggest problem with Kagan is we don't know WHAT her views are.  There's just not much there, and what's there is fairly ambiguous.

All signs point to her being fairly moderate, but what THAT means is hard to pin down, too.  Free speech versus censorship is hard to frame as a liberal-versus-conservative issue.  Alito was the sole dissenter in the recent animal cruelty case, but on the other hand Stevens wrote the majority opinion for FCC v Pacifica.

My guess is we won't see a new category of restricted speech created in this one, and the vote won't be close enough that Kagan acts as a swing justice.  But we won't know until we get there.

Re: Jury Still Out on Kagan’s First Amendment Stance

You're making a good point there Thad.  Upholding this law would require creating a new category of speech which is not protected.  Or at least it seems that way to me (feel free to disagree if you know the applicable law better (which wouldn't be hard in my case)).  To my understanding SCOTUS has been very leery of adding such in the past.  I doubt that changing one member, any one member, of the court would change that.

And if they do uphold the law there's a lot of grey area there.  What exactly is "too violent" to allow sale to minors?  Who decides?

===============

Chris Kimberley

===============

Chris Kimberley

Re: Jury Still Out on Kagan’s First Amendment Stance

Presumably it's the same nebulous "community standards" that are applied to determine what constitutes pornography (itself, of course, a form of restricted speech which can't be sold to minors).

Re: Jury Still Out on Kagan’s First Amendment Stance

Not to disagree entirely with anything that's been said, but I much prefer Chris Kimberly's use of "not protected" as opposed to Thad's use of "restricted." Technically, speech is either among a class protected by the First Amendment or it is among a class not protected by the First Amendment. And, technically, all speech which is among the classes of First Amendment-protected speech may be restricted provided the restriction passes the appropriate level of judicial scrutiny. Thus, technically, pornography is more accurately described as a form of protected speech but one which is restricted in its sale to minors.  

Re: Jury Still Out on Kagan’s First Amendment Stance

M games are going to be bumped up 18 which is the same as the AO rating so M games would be treated the same as the taboo AO rating. Also I didn't mean graphics wise for the 30 years comment I was talking about how games back then were all family friendly.

Re: Jury Still Out on Kagan’s First Amendment Stance

Again, that's not necessarily the case.  First of all, it's only one state we're talking about (for now).  Second, it's not tied to the rating of the game (that would be illegal, as the ESRB is not a government entity), it's related specifically to violent content.  Third, there's a strong psychological difference in how Americans treat sex versus violence -- AO games are taboo because they're (generally) pornographic; M games aren't because they're (generally) simply violent.  Look at Hot Coffee -- it was a huge scandal that this violent video game had sex scenes.  I personally find it absurd, but I have to acknowledge that that's the way it is; American society in general has less of a problem with violence than sex.

There are a lot of variables to consider here.  Again, I think the bottom line is that some devs would be more nervous about producing violent games, but the ones who are making a fortune at it aren't going to stop.

And yeah, I knew what you meant.  I was pointing out that there's a hell of a lot more to the last THREE DECADES of advances in video games than the fact that some of them are violent now.

Re: Jury Still Out on Kagan’s First Amendment Stance

Later this year, we will know if this whole debate about violent videogames is either protected speech or not, but then there will still be idiots like Yee trying to pass laws like this in other states.

There could also be a moral panic about Japanese youth culture too in the decade ahead, so what ever we do here to protect our right for entertainment we might have to stand up and protect other forms of entertainment too.

 

TBoneTony

Re: Jury Still Out on Kagan’s First Amendment Stance

Well coming this October if she is anti video games and makes this law pass then gaming in America will be set back 30 years and games will only be targeted to children/early teens and late teen/adult gaming would be not allowed at all. :'(

Re: Jury Still Out on Kagan’s First Amendment Stance

Wow, I don't know where to begin tackling everything that's wrong with that post.

I guess I'll start with the fact that the law has already passed.  Courts don't pass laws, they interpret them.  The Supreme Court is determining whether to uphold an existing law, not make a new one.

Second: "gaming in America will be set back 30 years" -- what, to Pac-Man?  You DO understand that the law doesn't actually prevent people from developing games with scrolling, 4-color graphics, or D-pads, right?

Third: "games will only be targeted to children/early teens and late teen/adult gaming would be not allowed at all."

What the hell are you talking about?  The law doesn't prevent adult-oriented games from being created or distributed, just from being sold to minors.  Now, that COULD have a chilling effect on the sorts of games that get made (as the AO rating already does), but that's not the same as not being allowed at all.  Do you really think that already-established, already-successful franchises like GTA would just suddenly die on the vine?

I don't like the law either, but it really appears as if you have no idea what the law says, how the branches of government work, or what games looked like 30 years ago.

Re: Jury Still Out on Kagan’s First Amendment Stance

 I do not think the poster was referring to technical advances in games, but instead to the 'games are toys for children' meme that dominated the 80s.

Re: Jury Still Out on Kagan’s First Amendment Stance

I'll with hold on the words and let her actions do the real talking.

Re: Jury Still Out on Kagan’s First Amendment Stance

Her actions, not her words?  You DO realize she's applying to be a Supreme Court Justice, not Batman, right?

Re: Jury Still Out on Kagan’s First Amendment Stance

yes, and I was saying I'll hold my judgement and see what happens if she gets this position.

Re: Jury Still Out on Kagan’s First Amendment Stance

That's not really actions versus words, though.  That's words before being confirmed and words after being confirmed.  It's pretty much a job where you say and write words.

 

 
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