On Kagan and net neutrality

Dorian Davis Adjunct Journalism Professor, Marymount Manhattan College
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Lindsay Lohan’s spent more time in court than Elena Kagan.

Having never been a judge, U.S. Solicitor General Kagan, Obama’s second Supreme Court nominee, comes into her June 28 confirmation hearings without a clear First Amendment record to hint at her possible stance on the Internet’s biggest free speech issue—net neutrality.

Free speech on the Web is in more danger than a hot dog at Rosie O’Donnell’s. Under pressure from Google and other high-traffic websites, the Federal Communications Commission is moving to regulate the Web, barring Internet service providers from making exclusive carriage deals with some Websites while blocking others. It claims that rule—net neutrality—guarantees an “open Internet.” But regulation is the bigger threat to free speech. FCC censorship forced Howard Stern to leave FM radio. Making providers offer particular websites is also tantamount to making publishers publish particular books—a First Amendment violation and one that could soon end up before the U.S. Supreme Court.

It’s hard to know where Kagan stands. The New York Times claims that Kagan’s pre-Tech Era writings seem to suggest a more conservative stance on speech. Analyzing Kagan’s 1996 academic paper “Private Speech, Public Purpose,” University of Nebraska law professor Marvin Ammori comes to the same conclusion. Based on Kagan’s siding with Turner Broadcasting against the FCC that hoped to further regulate it, Ammori claims at HuffingtonPost.com that Kagan’s likely to oppose net neutrality.

But none of her recent positions on First Amendment cases seem to support that. In fact, at the Supreme Court, Kagan’s free speech arguments have been rejected more than her Match.com profile.

Defending a federal law that prohibits corporations from running political ads on TV, for instance, her office told the Supreme Court in last March’s Citizens United v. Federal Election Commission that the government could also, as part of its election oversight role, ban books that support or oppose political candidates. Later in the same case, Kagan herself argued that the government could ban corporate-sponsored political pamphlets too.

In another SCOTUS case last October, she claimed that free speech has to be balanced against “societal costs,” a stance that Chief Justice John Roberts called “startling and dangerous” and that the court rejected 8-1.

Applied to the Web, that view of the First Amendment presents a couple of problems. For one, it bars even NYTimes.com from running editorials. For another, it invites a debate on the definition of corporate sponsorship. If personal Twitter pages earn revenue from corporate ads, for instance, could the government censor them too?

Granted, Kagan’s arguing Citizens United was part of her job as Solicitor General. But Obama cited that case—“unscrupulous corporations” (Citizens United) targeting “ordinary people” (the Clinton campaign)—to highlight Kagan’s philosophy. He also said that Kagan had picked Citizens United as her first case to argue to the Court.

One of two things is true. Either Kagan agreed with her Citizens United argument or Obama’s nominating her was more delusional than Universal’s green lighting MacGruber.

(Sidebar: If the government’s own “bipartisan campaign finance reform” law’s standing up to a constitutional challenge is a “long-shot,” according to Obama in that same speech, how’d it pass Congress?)

Two weeks ago, House members from both parties ordered the FCC to stop Web regulation efforts until Congress decides whether to change its mandate to include the Web. But Congress is worse at keeping its hands off private businesses than N.J. Gov. Chris Christie is at pilates.

This’ll go to the Supreme Court sooner or later.

Like other SCOTUS nominees, Kagan can brush off in her confirmation hearings questions that could come before her in Court. But as a U.S. Senator opposing Harriet Miers’ nomination, Obama once said that “blank-slate” candidates are obligated to be “more forthcoming.” Squirrels have more bench experience than Kagan. She owes it to Congress to be upfront on free speech and net neutrality.

Dorian Davis is a former MTV HITS star and MTV News content developer-turned-Flaming Politics blogger and Libertarian writer. Published in Business Week, NY Daily News, XY & more. National Journalism Center alum. NYU and CUNY grad. Journalism professor at Marymount Manhattan College.