"The Big Ban Theory: Does Elena Kagan Want to Ban Books? No, and She Might Even Be a Free Speech Zealot"

I have just written this Jurisprudence column for Slate. It begins:

To hear Senate Minority Leader Mitch McConnell, R-Ky., tell it, if Solicitor General Elena Kagan is confirmed to the Supreme Court, she just may be ready to authorize the government to ban books and pamphlets criticizing politicians. It's an argument that's been repeatedly echoed on the right, most recently by Citizen United President David Bossie, who wrote in a Washington Post op-ed Friday that Kagan believes "pamphlets could be censored:" Bossie concluded that "[a] nominee who believes that certain types of speech and certain speakers should be censored for no other reason than that speech affects a lawmaker's chances of re-election is not fit for the Supreme Court."

The book-banning claim against Kagan is completely spurious, based on a distortion of her remarks at a Supreme Court oral argument in the Citizens United case as well as the comments made the same week Kagan started as solicitor general by Malcolm Stewart, a career deputy solicitor general who argued the case last spring. Not only have these isolated comments blossomed into full-on hysteria over Kagan the potential book banner, but they actually have come to obscure the fact that how Kagan herself would vote in campaign finance cases is far from clear. Her own academic writings show she is deeply concerned about incumbents passing laws to protect themselves from competition, and she could well end up agreeing with Chief Justice John Roberts, and Justices Samuel Alito, Anthony Kennedy, Antonin Scalia, and Clarence Thomas that limits on campaign spending by corporations are unconstitutional.

Posted by Rick Hasen at May 24, 2010 09:23 AM