With Kagan's Senate confirmation hearings to begin tomorrow, an article in this weekend's Politico.com speaks of Kagan's past writings, statements and litigation track record on the subject of restriction of pornography and other sexually explicit speech, which Kagan would reportedly very much like to restrict through the development of novel new legal strategies aimed at cracking down on that type of content. From my read of the article, a lot of what Kagan has espoused as a young lawyer and more recently as solicitor general gets back to the common theme that she believes that judges should be in the business of making judgments identifying new types of speech -- through a wide-open "balancing" of the speech's costs versus its benefits -- as "low value" or "minimal value," such that the speech could be very freely censored and restricted by the government.One critic alleges that Kagan really only viewed pornography and obscenity law as a sort of starting point that could then be extrapolated to other forms of speech that Kagan views as being "low value." To me, this line of thinking is potentially very dangerous given what I see on a daily basis in this country from a dem and repub party controlled by their extremes, i.e. members of the far left and far right who have an outright disdain and lack of respect for anyone who disagrees with them on anything. For example, I see a huge potential for restrictions upon political speech, such as political speech coming from the right or center, which a liberal like Kagan happens to disagree with and views to be "low value." And what would likewise stop some right-wing judge from similarly trying to apply a willy-nilly "balancing test" to political opinion coming out of the left? I say we leave the ol' speech "balancing test" in the closet, thank you, ma'am. (BTW, the Supreme Court roundly rejected such a balancing test in a Kagan case in recent years). But I digress.
Back to the question of whether dems or repubs might try to use any of this during the confirmation hearings, specifically in reference to the pornography issue. Dems might well like to get into this because Kagan's anti-smut views (generally consistent with many social conservatives' viewpoints) tend to go against the far leftist label that repubs would like to try to hang on her. But Politico reports that dems will be hesitant to get into an issue that previously caused a near civil war within the American feminist movement (anti-censorship feminists versus anti-pornography ones).
On the repub side of things, many more-libertarian type republicans are sure to be concerned with Kagan's viewpoints in this entire area, while socially conservative republicans really wouldn't want to touch Kagan's anti-smut viewpoints with a ten-foot pole. My guess: You will hear very little about any of this from either side. Congressional hearings are all about face-time, grandstanding and speechmaking rather than taking any type of calculated risks, after all -- even in an area of such vital importance as the First Amendment and our free speech protections.
http://www.politico.com/news/stories/0610/39034_Page3.html
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