In her 1995 U. Chicago L. Review piece on hate crime and pornography (which I found here), then Professor Kagan wrote:
This Essay on the regulation of hate speech and pornography addresses both practicalities and principles. I take it as a given that we live in a society marred by racial and gender inequality, that certain forms of speech perpetuate and promote this inequality, and that the uncoerced disappearance of such speech would be cause for great elation.
The question I pose is whether there are ways to achieve at least some of the goals of the anti-pornography and anti-hate speech movements without encroaching on valuable and ever more firmly settled First Amendment principles.
In other words, while the uncoerced disappearance of certain forms of speech would be a good thing, let’s see what we can do to coerce its disappearance. Missing entirely is the argument that would signal Ms. Kagan’s stature as a serious thinker. That argument is the one in which she takes us from how good it would be if all forms of speech that perpetuate and promote racial and gender inequality would disappear without coercion to the premise that we should find ways to get rid of them by coercion. (Also missing are descriptions of “hate speech” and “pornography” sufficient to let us know what we are talking about.)
We do get a robust, if utilitarian, defense of viewpoint-neutral First Amendment jurisprudence, in which, for example, Prof. Kagan outlines the reasons why regulation that claims to be “harm-based,” as opposed to “viewpoint-based,” would in effect be viewpoint-based and should, therefore, be rejected. But, whereas her defense of viewpoint neutrality against claims of harm-based regulation seems to make hate-speech and, especially, pornography, beyond the scope of regulation, she continues:
None of this discussion, of course, denies either the possibility or the desirability of crafting carefully circumscribed exceptions to First Amendment norms of viewpoint neutrality, and in the last section of this Essay, I briefly consider whether and how this task might be accomplished.
Say what? “[C]arefully circumscribed exceptions to First Amendment norms of viewpoint neutrality”? Circumscribed by whom under what standard of care? Yikes.
The four approaches are, in order: (1) the enactment of new, or the stricter use of existing, bans on conduct; (2) the enactment of certain kinds of viewpoint-neutral speech restrictions; (3) the enhanced use of the constitutionally unprotected category of obscenity; and (4) the creation of carefully supported and limited exceptions to the general rule against viewpoint discrimination.
1. The enactment of new, or the stricter use of existing, bans on conduct. In this category, Prof. Kagan included the enhanced punishment of hate crimes and the prosecution of crimes incidental to the production of pornography, specifically, “the sexual assaults and other violent acts so frequently committed against women in the making of pornography.” So frequently? If she says so. Certainly, kiddie porn and snuff films and any other degrading video in which anyone is forced or conned into appearing should give rise to prosecution. But that hardly seems worth the trouble to say.
Prof. Kagan rejects the application of prostitution, pimping, and pandering laws to porn. She rejects prostitution prosecution, which won’t work anyway seeing as how it’s almost impossible to prove in what jurisdiction any particular act occurred, because such prosecution would make a criminal of the “victim” – viz., the female performer. But that argument seems to misconstrue her own complaint against pornography in the first place, which is not that it victimizes the performers but that it promotes and perpetuates gender inequality. Whatever, we are left with only a proposal to outlaw assault and deceit. Fine.
2. The enactment of certain kinds of viewpoint-neutral speech restrictions. Here Prof. Kagan runs smack into her own premises. Recall that she wants to get rid of speech that perpetuates and promotes racial and gender inequality. Those are viewpoints. Not nice ones. But viewpoints nonetheless. That’s why their uncoerced disappearance is to be wished for. But how do we impose viewpoint-neutral restrictions on something we want to get rid of precisely because we don’t like its viewpoint?
Prof. Kagan wrote:
A law prohibiting, in viewpoint-neutral terms, not merely fighting words but other kinds of harassment and intimidation would (and should) face greater constitutional difficulties, relating most notably to overbreadth and vagueness; but a carefully drafted statute might well surmount these hurdles, and such a law surely would not be subject to the selectivity analysis of [R. A. V. v. City of St. Paul, 505 U.S. 377 (1992)]. Viewpoint-neutral laws of this kind - whether framed in terms of fighting words or in some other manner - might be especially appropriate in communities (such as, perhaps, educational institutions) whose very purposes require the maintenance of a modicum of decency."
That’d be speech codes on campus made into law. I’d want to see a more exhaustive defense of that one.
There’s more than a whiff of “nothing’s impossible for the man who doesn’t have to do it himself” in Prof. Kagan’s proposals. Such proposals. without well-defended examples, are vacuous. Just what the careful drafter would have to be careful to do is not made clear, and so the job is assumed to be doable without evidence that it is.
And it won’t do to say, as Prof. Kagan does, that she cannot give these tough questions “the extended treatment they merit.” Then why show up at all? Anyone can ask hard questions. (Which is not to say that Prof. Kagan has asked the right hard questions. Indeed, until you try to answer your own questions, you can’t be sure that they are the right questions.)
3. The enhanced use of the constitutionally unprotected category of obscenity. I have to admit that I have read the section of Prof. Kagan’s piece about redefining “obscenity” to capture sexually violent pornography on the basis of the harm such works do to women, and I do not get it. She says that “the obscenity doctrine itself may benefit by transformative efforts, as these efforts bring the doctrine into greater accord with the harm-based morality of today, rather than of twenty years ago.” But that is precisely the sort of harm-based argument that she rejected earlier because, as she so ably argued, all viewpoints worth the trouble to suppress harm someone. So, having come out against harm-based subterfuges in one part of her essay, she seems to be advocating one in another.
More disturbing, this portion of the essay seems the most blatantly political. I have no problem with Ms. Kagan having a political views, including certain feminist views that I don’t think much of, but I do have a problem with her trying to find ways to suppress speech that she clearly opposes on political grounds by pretending that it is not political speech.
Obscenity, above all, is apolitical. Otherwise, it’s not obscenity in the Constitutional sense. I’m not saying that a producer can put a political fig leaf on obscene material and make it not obscene. But I am saying that if the reason we oppose obscenity is because it does harm to a group (as opposed to public morals generally) by the message it sends, then we are admitting that it is, ipso facto, political speech and that we are suppressing it for that reason. Thus, Kagan’s “enhanced” use of obscenity is code for the political use of obscenity, and that’s, well, obscene.
4. The creation of carefully supported and limited exceptions to the general rule against viewpoint discrimination. This section seems to reveal a shallowness in Kagan’s understanding of viewpoint neutrality. She cites existing exceptions to viewpoint neutrality in cases where the Court has permitted certain speech to be suppressed. As regards obscenity, she writes (in footnote 73):
It might be argued that such a redefinition of the obscenity category would render it viewpoint-based and therefore inconsistent with the First Amendment. This argument depends first on the proposition that a statute framed in terms of sexual violence is viewpoint-based…. As important, the argument depends on the proposition that the obscenity category is not now viewpoint-based - in other words, that it does not now constitute some kind of exception to the rule of viewpoint neutrality. This proposition is difficult to maintain given the obscenity test's reliance on community standards of offensiveness. [Citations omitted.] As between an obscenity doctrine that focuses on sexual prurience and offensiveness and an obscenity doctrine that focuses on sexual prurience and violence, the former would appear to pose the greater danger of viewpoint bias.
The last sentence of this footnote is crucial. The purpose of the First Amendment – not of the judicial rules implementing it, but of the Amendment itself – is to protect the flow of political information. The question, therefore, is not whether a law suppresses a “viewpoint” per se, – every obscene work can be seen to express the “viewpoint” that we should not to be disgusted by what we see – but whether the law in question favors or disadvantages a political interest, i.e., the interests of something less than the community at large. Yes, we have carved out public morals as an exception to viewpoint neutrality, but only to the extent necessary to prohibit material that offends community standards.
We enforce obscenity laws because we recognize, I would argue, that obscene materials raise no serious issue regarding competing political interests. As soon as one says, however, that a form of speech disadvantage some subset of society, then the protections afforded political speech come into play. That’s why a statute based on offense to the community causes less Constitutional concern than one based on potential violence against a group.
Thus, Kagan writes:
Could it possibly be the case that viewpoint discrimination built into the very definition of a low-value category is permissible, whereas viewpoint discrimination carving up a neutrally defined low-value category is not?
No, it cannot be. Not if the viewpoint discrimination relates to a political matter, including the relative status of interest groups in society. And so we return to the beginning. Speech that perpetuates and promotes racial and gender inequality is political speech. and, as such, there should be no way to suppress it, and no one, least of all a Supreme Court nominee, should be looking for a way to suppress it.
Prof. Kagan recognizes the modesty of what can be done even under her reading of the authorities:
But … the hard question remains: should the Court accept pornography or hate speech as a low-value category of expression? The currently recognized categories of low value speech seem to share the trait, as Cass Sunstein writes, that they are neither "intended [nor] received as a contribution to social deliberation about some issue. [Citation omitted.] That definition offers several lessons for any regulation, concededly based on viewpoint, either of hate speech or of pornography. In the case of hate speech, such an ordinance should be limited to racist epithets and other harassment: speech that may not count as "speech" because it does not contribute to deliberation and discussion. In the case of pornography, any ordinance should be limited to materials that operate primarily (as obscene materials operate primarily) as masturbatory devices; in addition, an explicit exception, like that in the obscenity standard, for works of serious value ought to be incorporated. Only if pornography and hate speech are defined in this narrow manner might (or should) the Court accept them as low-value categories - a classification that, it must be remembered, depends at least as much on the non-expressive quality of the speech as on the degree of harm the speech causes.
The Professor’s point about masturbation rings a bell. In 1993, Carol Iannone wrote an article for Commentary contesting McKinnon-Dworkin on pornography. I don’t recall Ms. Iannone’s arguments, but she seemed to me too quick to accept the idea that pornography could be Constitutionally regulated. I wrote a letter to the editor, which was published in the January, 1994 issue of the magazine:
To the Editor:
Without disagreeing at all with Carol Iannone's points [“Sex & the Feminists,” September 1993], I would urge upon her a stauncher defense against Catharine MacKinnon's assault on the Constitution.
MacKinnon's argument is simple: because the Constitution protects speech to enhance the search for truth, the government should be able to suppress specific views that cannot be true, at least where there is a compelling state interest to be advanced by the suppression. Because anti-egalitarian speech cannot possibly be true, and equality is a compelling state interest, the former should be suppressed in furtherance of the latter. Miss Iannone seems to accept MacKinnon's premises, arguing back only that some ideas MacKinnon would suppress are at least debatable. In this, she rises too willingly to the bait.
To suppress speech on the ground that it cannot be true is to miss entirely the point of the First Amendment. As organic law, the First Amendment is not about truth; it is about politics. Political information . . . is the lifeblood of our electoral democracy. If a view that cannot be true cannot be expressed, we cannot learn that the view is even held. As a result, we are denied important information about the beliefs of the electorate. We cannot adequately develop a platform on which to run or a basis on which to vote. (Imagine trying to conduct a public-opinion poll on the status of the sexes in Catharine MacKinnon's America.)
When the First Amendment is properly understood as protecting the flow of political information, MacKinnon is hoist by her own petard. Unlike conservatives who would ban pornography because it has no more social importance than a vibrator, MacKinnon would suppress it because it contains a dangerous political message. If pornography really does contribute to the oppression of women, and especially if its producers intend that effect, pornography ipso facto has redeeming social importance and is protected speech (I take the word “redeeming” in the phrase “redeeming social importance” to mean redeeming from mere prurience, not redeeming in any uplifting sense). The pornographer's message may demand rebuttal but, if he does have a political message, censorship is not our way of rebutting it.
Prof. Kagan seems to have come down on the side of the conservative vibrator crowd. The question is, though, on what basis do we ban masturbatory aids? And is that really what this fuss is about.
Prof. Kagan’s piece seems to me something of a sop to feminists who wanted her to say something at a time when the issue was hot. Because, in the end, she says very little, giving them, perhaps, a slender tree to bark up, and specific suggestions of the slightest practical import. But it’s discouraging to see how quick she is to wish she could squelch unpopular speech. I want a justice who will defend my right to know what my most obnoxious neighbors think, not apologize for her inability to suppress it.