Supreme Court nominee Elena Kagan on hate speech and pornography (aka the First Amendment)

Lastly, and perhaps most problematic, Kagan explored the idea of widening the definition of the term “obscenity” so the government could regulate images portraying violent acts of sex and other forms of pornography.

While her comments suggest a heavy interest in the topic, her 1993 essay on free speech indicated that the pursuit of free speech regulation — both for hate speech and pornography — was probably a frivolous endeavor.

“[M]y view is that efforts to regulate pornography and hate speech not only will fail, but also should fail to the extent that they trivialize or subvert this principle,” she wrote, referring to viewpoint neutrality, the idea that government cannot restrict speech because it disagrees with its message.

Based upon her public speeches and scholarly writings, legal scholars said they were not certain how she would rule as Supreme Court justice. “It’s hard to tell for sure,” wrote UCLA law professor Eugene Volokh in a May review of her legal and scholarly writings.

Whether she would capitalize on an opportunity to weaken laws protecting hate speech and pornography while on the court, Volokh said he was skeptical Kagan would rule against First Amendment rights.  “I likewise see little interest in moving the law much,” he said of her previous written works. “[I]t sounds like most that she would tolerate is a restriction within this unprotected category of fighting words: I don’t think she would endorse restrictions on allegedly racist or otherwise bigoted speech outside this traditionally unprotected category.”

But with pornography, Volokh said Kagan could be more willing to rule on cases that would increase restrictions.

“[W]hile she might tolerate some restrictions on pornography — probably limited to pornography that depicts violent sex — it seems likely that she won’t go much beyond (and likely not at all beyond) restrictions on pornography that already fits within the ‘obscenity’ exception,” he said.

While Kagan’s ability to act upon her convictions as a member of the Supreme Court may be curtailed by her position on the court, her writings and speeches reveal that she does hold a strong personal affinity toward efforts to regulate what she referred to as “low-value speech.”

“Such efforts will not eradicate all pornography or all hate speech from our society,” Kagan wrote in 1993. “But they can achieve much worth achieving.”

The Senate began its confirmation hearing for Kagan Monday, and the final floor vote is expected by the end of July.