While Kagan appears to be focusing more on conduct based regulation when it comes to hate speech, one has to be concerned when we start talking about a categorical balancing of the costs and “value” inherent in certain speech. This takes us into a legal form of “social engineering” that has no place on the court.Read Brian's entire post at briancuban.com
If speech leads to imminent lawless action or fits a few other very narrow categories we already can regulate it and we do. Even these types of laws, however, have been subject to subjective moral flexibility. The use of child pornography laws to prosecute sexting is an example. What about hate speech? Who sets the bar? Are we going to criminalize Holocaust Denial? That’s low value speech to me. Why not? If she gets hers, I want mine. It’s ad hoc right? What about inflammatory political speech? We tried that once. It was called Sedition. Didn’t work out well.
I am not contending that Kagan is going to go off the “free speech deep end” but to even consider any type of “value balancing” approach to hate speech even with the best intentions could take us down a free speech rabbit hole that will be hard to climb out of, setting the 1st Amendment back decades.
Is there low value speech? I agree with Kagan that there is. That does not mean the court should start adding ad hoc categories designed to tell me what it is. I can decide for myself and make my personal decision if I want to view it, engage in it or debate it. There is already enough subjectivity to go around without opening up a Pandora’s Box of moral interpretation.
The key quotes from Kagan are there.
Any idea in pure form is dangerous. Obviously there are limits to how far speech can go before it threatens the individual. The key to this issue is more complex then just weighing the values, variables and attributes of cause and effect. Of course there is no math to this. What scares me is not that Kagan sees limitations to what can be said... what scares me is that she (and this is an assumption based on her other loyalties) will assume that violent speech can be policed in a centralized manner by the Federal government or worse... the U.N.
