Elena Kagan: Hostile to free speech?

By David N. Bossie
Friday, May 21, 2010

I have no doubt that Elena Kagan is an intelligent and capable attorney, and I do not believe, as some have asserted, that her lack of judicial experience disqualifies her for a seat on the Supreme Court. Rather, I oppose Kagan's nomination because I believe that every American has a fundamental right, guaranteed by the First Amendment, to speak out for or against their elected representatives. Anyone who does not feel that way should not be put in a position of authority where she can restrict that right.

I am referring, of course, to Kagan's role in the landmark free-speech case brought by Citizens United, the grass-roots organization I lead. Even before Justice John Paul Stevens announced his retirement in April, President Obama telegraphed his intent to choose his next Supreme Court nominee based on that person's opposition to my organization's right to participate in the political process. Beginning with his unprecedented rebuke of the court during his State of the Union address and culminating with his remarks announcing Kagan's nomination, Obama has let it be known that opposition to the First Amendment rights of grass-roots organizations such as Citizens United has become the new litmus test.

Such a test is disturbing in many ways, not least in that handpicking nominees on the basis that they will rule a particular way on a particular issue is unsound policy. But the problem is compounded when the issue at hand is the First Amendment right of Americans to support or oppose their elected officials without fear of government reprisal.

Kagan's defenders will argue that she was merely doing her job as solicitor general and that her personal beliefs cannot be divined from her arguments in Citizens United v. FEC. But the president's remarks in introducing Kagan as his court nominee indicate that he believes otherwise. That day, the president mentioned only one case and said: "Despite long odds of success, with most legal analysts believing the government was unlikely to prevail in this case, Elena still chose it as her very first case to argue before the court." I think we should take the president's stated rationale for his decision at face value.

Kagan's defenders will also argue that the new litmus test has to do with preventing huge corporations from drowning out "the people" during elections. But this is no more than a resurrection of the tired politics of class warfare, calculated to stoke the fires of populist anger to mask an erosion of the First Amendment. Keen observers will note that the plaintiff in the only case Obama mentioned that day is Citizens United -- not Exxon Mobil or Goldman Sachs. Citizens United is an organization funded by an average donation of $50 from hundreds of thousands of Americans nationwide. Our members, whose voices would be drowned out were they prohibited from pooling their limited resources in a group such as ours, are "the people." It is their right to speak that Obama and Kagan oppose when they criticize the court's decision in Citizens United v. FEC.

Most troubling of all is that the line of reasoning running through Kagan's opposition to our case leads directly to the conclusion that the government has the authority to ban books and other forms of communication. When our case was reargued before the high court last September, Kagan tried to walk back from that reasoning, saying that the "FEC has never applied this statute to a book." But she specifically noted that pamphlets could be censored, which leads to questions: What about content published on a Kindle or an iPad? What about YouTube or other Internet sites that do not have 200 years of tradition and jurisprudence protecting them? Is a statement from a government lawyer that "we've never prosecuted anyone for that" really an acceptable protection of a constitutionally guaranteed right? As Chief Justice John Roberts rightly noted that day, "we don't put our First Amendment rights in the hands of FEC bureaucrats."

To argue that Citizens United v. FEC was about anything other than the right of American citizens to join together and exercise their constitutionally guaranteed right to political speech is typical Washington double-speak. The remedy for speech that one does not agree with is more speech, not regulation. 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 reelection is not fit for the Supreme Court. If confirmed, Kagan would wield enormous power over the constitutionally guaranteed right of every American to participate in the political process -- a right that she believes government can restrict.

The writer is president of Citizens United.

© 2010 The Washington Post Company