Elena Kagan and The First Amendment

Prof. Kagan wrote most fully about the First Amendment in “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine,” 62 University of Chicago Law Review 413 (Spring 1996). The article is over 100 pages long, and I do not claim to have read it all. But I do claim to take away from it a specific impression of Professor Kagan, namely, that she may be a better student than teacher.
The first part of the article concentrates on R. A. V. v. City of St. Paul, 505 U.S. 377 (1992). R.A.V. arose from a prosecution under an ordinance that made it a misdemeanor to "place[ ] on public or private property a symbol... which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender .... ." The majority of the Court assumed, arguendo, and consistently with the holding of the Minnesota Supreme Court on the matter, that the ordinance applied only to "fighting words," a category of speech not protected by the First Amendment. Thus, according the majority opinion, and Prof. Kagan, the issue before the Supreme Court was whether St. Paul constitutionally could prohibit some, but not all, unprotected speech - more specifically, fighting words based on race and the other listed categories, but no others.
I believe that only eight justices voted in the case. (For some reason, I cannot find a list of justices who joined Justice Scalia in the Court’s opinion, but I suspect that Justice Thomas, who was on the Court when the case was decided had not heard the case when it was argued.) Justice Scalia did address the issue as described by Justice Kagan and held that the ordinance was unconstitutional because it punished some fighting words and not others. But four Justices disagreed with Scalia’s reasoning, arguing that a subset of unprotected speech can be barred, but finding that the St. Paul ordinance went beyond “fighting words,” and was, therefore unconstitutional.
Prof. Kagan devotes a footnote to the concurring opinions of half the participating justices and then addresses the Court’s opinion:

Three explanations for the Court's decision offer themselves, the first two relating to different effects of the St. Paul ordinance, the last relating to its purpose. First, the Court might have held as it did because the St. Paul ordinance too greatly interfered with the opportunity of speakers to communicate their desired messages. Second, the Court might have reached its decision because the ordinance harmed the ability of the public-that is, the audience-to become exposed to a desirable range and balance of opinion. Third, the Court might have invalidated the ordinance because regardless how (or whether) it affected either speaker or audience, it stemmed from an improper purpose on the part of the government.

But there is a fourth possibility, the one that offered itself to the four justices who concurred only in the result, viz., that the Court’s opinion was wrong. That possibility, it seems to me, is where the fun is. Certainly, lawyers need to be able to deal with the legal landscape created by the “official” opinion, but that’s something for students and practitioners to wrestle with. The debate among the justices revealed a Court deeply divided about an important jurisprudential question, and I see far more food for scholarly analysis in that division than in the doctrinal mess that arose from treating the Court’s opinion as sound.
I may be biased, as I find Justice White’s concurrence persuasive. I also like Justice Stevens’s concurrence, although I think he saw more distance between himself and Justice White than was really there. Still, the difference that he found, which relates to role of context in categorizing speech, is philosophically intriguing and just the sort of thing I would want a scholarly piece to pick apart.
The philosophical split among the justices is especially significant in hindsight, as the Court, without admitting it, backed away from R.A.V. in Virginia v. Black, 538 U.S. 343 (2003). There, the Court reversed the Virginia Supreme Court, which had ruled that Virginia’s anti-cross-burning statute was unconstitutional under R.A.V. Somehow, the Court managed to distinguish R.A.V. away, in what I see as a legal fiction intended to respect stare decisis while recognizing that they had in fact got R.A.V. wrong. Obviously, Prof. Kagan did not have this history available, but she did have the chance to say, as four justices did, that Scalia et al. were wrong; instead, she tried to make sense out of a world in which they were presumed to be right.
The second part of the article considers three theories of First Amendment jurisprudence:

The first approach - call it the "speaker-based" model - understands the primary value of the First Amendment to reside in its conferral of expressive opportunities on would-be communicators. A system of free expression, in allowing individuals to communicate their views, enhances their "autonomy" or "self-respect" or "self-development" or other (equally amorphous but desirable) human quality. Under this theory, any limitation of expressive opportunities constitutes a harm because it interferes with some speaker's ability to communicate to others and with the benefit that speaker thereby derives….
By contrast, the second approach to the First Amendment - call it the "audience-based" model - focuses on the quality of the expressive arena. A system of free expression, under this theory, has value because it enables the public-the audience for the speech - to arrive at truth and make wise decisions, especially about matters of public import. In order best to fulfill this function, a system of free expression should promote not speech alone, but speech of a certain kind and mixture. Rich public debate is the goal; the concern is the expressive realm as a whole, rather than each opportunity for expression….
The third approach to the First Amendment - call it the "government-based" or "motive-based" model-claims that what is essential is not the consequences of a regulation but the reasons that underlie it. The point of attention is neither the speaker nor the audience, but the governmental actor standing in the way of the communicative process. Under this model, an action may violate the First Amendment because its basis is illegitimate, regardless of the effects of the action on either the sum of expressive opportunities or the condition of public discourse. Conversely, an action may comport with the First Amendment because legitimate reasons underlie it, again regardless of its range of consequences. The critical inquiry concerns what lies behind, rather than what proceeds from, an exercise of governmental power.

Again, Kagan seems to be getting the lay of the land, rather than digging into it. I am particularly interested in her description of the “audience-based” model, which I favor, but with a significantly different focus. The electorate does not do truth; it does politics. What I want to know as a member of the electorate, is what other people think. Not what “worthy” contribution they have to make, but what they think, however bizarre, outdated, benighted or obnoxious their thoughts. Justice Harlan (of course) understood this when he wrote in Cohen v. California, 403 U.S. 15 (1971:

The constitutional right of free expression is powerful medicine in a society as diverse and populous a ours. It is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests. See Whitney v. California, 274 U.S. 357, 375-377 (1927) (Brandeis, J., concurring).
To many, the immediate consequence of this freedom may often appear to be only verbal tumult, discord, and even offensive utterance. These are, however, within established limits, in truth necessary side effects of the broader enduring values which the process of open debate permits us to achieve. That the air may at times seem filled with verbal cacophony is, in this sense not a sign of weakness but of strength. We cannot lose sight of the fact that, in what otherwise might seem a trifling and annoying instance of individual distasteful abuse of a privilege, these fundamental societal values are truly implicated. That is why "[w]holly neutral futilities . . . come under the protection of free speech as fully as do Keats' poems or Donne's sermons," Winters v. New York, 333 U.S. 507, 528 (1948) (Frankfurter, J., dissenting), and why, "so long as the means are peaceful, the communication need not meet standards of acceptability," Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971).

Cohen and the cases cited were all available to Kagan – she even cites Cohen in support of her convoluted “government-based” position even though, in my view, it actually explains why such an approach is unnecessary - but she chose to use secondary sources to inform her understanding of the “audience-based” model. “Wholly neutral futilities” do not contribute to substantive truth, but they provide politically useful information, and the reason we have a constitution, much less a bill of rights, is to do politics. By ignoring Cohen and its forebears, Kagan makes her own “government-based” model seem like an attractive alternative to an unconvincing competitor:

The discussion so far has assumed that the disparate impact of a law on ideas will distort the speech market. If that assumption is false, then the distinction between content-based and content - neutral laws - even if the most sensible way of determining whether a law disparately affects ideas -would not further the interest in balanced discourse.

But this reasoning assumes that the audience-based model is about balanced discourse, which, as Justice Harlan explained, it is not. When Cohen is added to the mix, I think a coherent audience-based theory of the First Amendment emerges without the need for what, I believe, is a circular argument about motives. Or at least, the possibility arises, and Kagan should have dealt with it.
I would not vote against General Kagan on the basis of her writings, but they do not suggest to me that she will be much of a counterweight to Justice Scalia et al. Of course, it seems to me that Justice Scalia’s work in R.A.V. was second-rate, and I suspect that if that opinion were a law review article and he were a nominee, I wouldn’t hold out that much hope for him, either. Maybe I’m just a tough room to play. We’ll see.