First Amendment: Chief Justice Roberts and Justice Scalia Agreeing with Philosophy of Justice Kagan? “The distinction between content-based and content-neutral regulations of speech,” she wrote, “serves as the keystone of First Amendment law.”
Much more interesting to look at the philosophies of the Justices rather than pin political party labels on them, no?
Much more interesting to look at the philosophies of the Justices rather than pin political party labels on them, no?
In 1996, a young professor named Elena Kagan published an article in The University of Chicago Law Review. It sketched a way to make sense of the Supreme Court’s approach to the First Amendment.
Chief Justice John G. Roberts Jr. cited the article in his majority opinion in a decision in June that struck down buffer zones for demonstrators around abortion clinics in Massachusetts.
In a case to be argued next week, the Kagan article is featured in four briefs. Solicitor General Donald B. Verrilli Jr. cites it twice, and a brief filed by two religious groups devotes four pages to it.
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It is not clear, though, whether Justice Kagan believes in the approach she identified. Her article says it means to analyze a hidden pattern in modern First Amendment law and serve as “primarily a descriptive theory."
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“I make no claim,” Justice Kagan added in the article, “that a sensible system of free speech should be concerned exclusively with governmental motivation.”
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In 2011, at the end of her first term on the court, she joined the majority opinion in a decision striking down a California law that banned the sale of violent video games to minors. The problem, Justice Antonin Scalia wrote, was that California wished “to create a wholly new category of content-based regulation that is permissible only for speech directed at children.”
That decision continues to trouble Justice Kagan. In remarks in November at Princeton, she said she had wanted to uphold the law.
“But I could not figure out how to make the First Amendment law work to make it O.K.,” she said. “It was clearly what is called a content-based distinction.”
She said the decision had haunted her.
“That is the one case,” she said, “where I just don’t know, I just don’t know, if that’s right.”
http://www.nytimes.com/2015/01/06/us/kagans-words-echo-at-the-supreme-court-19-years-later.html
Chief Justice John G. Roberts Jr. cited the article in his majority opinion in a decision in June that struck down buffer zones for demonstrators around abortion clinics in Massachusetts.
In a case to be argued next week, the Kagan article is featured in four briefs. Solicitor General Donald B. Verrilli Jr. cites it twice, and a brief filed by two religious groups devotes four pages to it.
...
It is not clear, though, whether Justice Kagan believes in the approach she identified. Her article says it means to analyze a hidden pattern in modern First Amendment law and serve as “primarily a descriptive theory."
...
“I make no claim,” Justice Kagan added in the article, “that a sensible system of free speech should be concerned exclusively with governmental motivation.”
...
In 2011, at the end of her first term on the court, she joined the majority opinion in a decision striking down a California law that banned the sale of violent video games to minors. The problem, Justice Antonin Scalia wrote, was that California wished “to create a wholly new category of content-based regulation that is permissible only for speech directed at children.”
That decision continues to trouble Justice Kagan. In remarks in November at Princeton, she said she had wanted to uphold the law.
“But I could not figure out how to make the First Amendment law work to make it O.K.,” she said. “It was clearly what is called a content-based distinction.”
She said the decision had haunted her.
“That is the one case,” she said, “where I just don’t know, I just don’t know, if that’s right.”
http://www.nytimes.com/2015/01/06/us/kagans-words-echo-at-the-supreme-court-19-years-later.html
