Say Again, Kagan?
So Elena Kagan wrote this:
If there is an ‘overabundance’ of an idea in the absence of direct governmental action -- which there well might be when compared with some ideal state of public debate -- then action disfavoring that idea might ‘un-skew,’ rather than skew, public discourse.
It's hard to imagine anything more antithetical to the First Amendment. The whole point is government keeps its hands off. No law means no law. The essence of freedom of speech is that the government is not capable--not really fit--to decide what ideas are in "overabundance."
I understand there are those who believe we can regulate our way to freedom of speech. It's fine if they live in this country, but keep them off the Supreme Court.
posted by LAGuy @ 12:21 AM
4 Comments:
She was not advancing a position but making a statement of possibility to undercut another argument. That the effect of any particular government action might not be to skew but to unskew debate therefore is any "marketplace of ideas" type argument, it is not always an accurate assumption that government action will "skew" a debate - she was not advocating that the government do either but stating the assumption should not be a basis in evaluating the constitutional basis of a law.
Of course skewing and unskewing can be just different sides of the same coin butI think she is referring to things like "truth in advertising laws" in terms of unskewing. Admittedly a not very clear quote hanging out there by itself but then again consider the source of the the article.
I think even taking it in context it's pretty scary. Anyone who wants to analogize free speech with the free market to note we have lots of regulation in our markets shouldn't be nominated to the Court.
Consider the source? What was it, NYT? ABC?
The source was a law review article.
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