	Introduction

President Obama has nominated his Solicitor General, Elena Kagan, to be the next Supreme Court Justice. If confirmed, she would fill the seat being vacated by Justice John Paul Stevens upon his retirement at the end of the 2009/2010 term. Prior to her term as Solicitor General, Ms. Kagan, in her capacity as an academic and scholar, wrote influential pieces analyzing free speech jurisprudence. "Private Speech, Public Purpose: The Role of Government Motive in First Amendment Doctrine"

The most comprehensive article (over 100 pages) Ms. Kagan has written on the First Amendment is "Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine." It is also important to note that the article was published in 1996. To explain why Ms. Kagan thinks her government motive theory is necessary to understand First Amendment doctrine, she begins with an example of a case that, in her opinion, could only make sense in the context of First Amendment doctrine if the Court is primarily concerned with improper government motive. Ms. Kagan hypothesizes that this outcome can be best understood when viewed as an attempt by the Court to guard against laws that have a greater likelihood of being motivated by an improper purpose. She acknowledges room for disagreement with her theory, but appears to believe, nonetheless, that she has devised the best explanation for then-current First Amendment jurisprudence possible. These two theories are compared with Ms. Kagan's "government motive-based" theory, which claims that "what is essential is not the consequences of a regulation but the reasons that underlie it" and that where a law leaves too much room for impermissible underlying motivations, the court will be more likely to strike it down as a result of that suspicion. Ms. Kagan argues that all free speech cases dealing with restrictions on the speech of private persons (she leaves the discussion of government speech for another day) can be explained, at least in part, by the Court's indirect inquiry into whether the law was motivated by the above impermissible reasons. She acknowledges that in United States v. O'Brien , the Supreme Court said that the purpose of Congress (or any governmental body) "is not a basis for declaring legislation unconstitutional." A law that banned all billboards would probably be constitutional, under current doctrine. Content-neutral laws do carry risk of improper motive, in Ms. Kagan's view, because they restrict speech, and it is possible that lawmakers may be so averse to a particular idea that they are willing to suppress more speech than necessary to restrict that idea's expression. This seems to run counter to the Court's decisions to create categories of speech with a lower value under the First Amendment. She uses as an example laws that would prohibit flag burning. Ms. Kagan wonders, however, why it is improper for the government to restrict objectively contemptible ideas, independent of the harm they might cause. "Regulation of Hate Speech and Pornography After R.A.V." Three years prior to publishing her article described above, Ms. Kagan wrote a piece in the University of Chicago Law Review on the implications of the Court's decision in R.A.V. Instead, she appears to take the position that assuming her understanding of the Court's doctrine is correct, statutes may be designed to comport with that doctrine and restrict some hate speech and pornography, though certainly not all. Fighting words are unprotected expression. Ms. Kagan further states that she believes this approach to be the most harmonious with free speech principles. Kagan does not argue that these will certainly work, nor does she argue that these are the only paths. She argues, therefore, that with the proper "fit" a law designed in this way might withstand scrutiny.
President Obama has nominated his Solicitor General, Elena Kagan, to be the next Supreme Court Justice. If confirmed, she would fill the seat being vacated by Justice John Paul Stevens upon his retirement at the end of the 2009/2010 term. Prior to her term as Solicitor General, Ms. Kagan, in her capacity as an academic and scholar, wrote influential pieces analyzing free speech jurisprudence.
In particular, Ms. Kagan wrote a law review article entitled "Private Speech, Public Purpose: The Role of Government Motive in First Amendment Doctrine." This article is best described as an attempt to understand the underlying issues free speech doctrine addresses. Ms. Kagan argues, basically, that the Supreme Court scrutinizes most closely speech restrictions that carry the most risk of having been enacted to serve improper government motives (e.g., to benefit certain ideas, to suppress particular ideas, or to serve legislative self-interest). Ms. Kagan opens the article by noting that the Supreme Court claims that the purpose of Congress (or any governmental body) "is not a basis for declaring legislation unconstitutional." Ms. Kagan posits, nonetheless, that free speech jurisprudence is an indirect (even unconscious) attempt by the Court to ferret out improper government motives where speech restrictions are at issue. In this way, she explains seeming inconsistencies in First Amendment law. For example, she uses her improper motive theory to explain why it is permissible for the government to ban all fighting words, but impermissible for the government to ban only fighting words motivated by racial or ethnic discrimination. Under Ms. Kagan's theory, it is more likely that the latter restriction was enacted pursuant to the improper governmental motive of suppressing ideas with which legislators disagree than the former, making the latter restriction unconstitutional, while the former withstands scrutiny.
Ms. Kagan does not appear to argue that the theory she describes is the best possible way to establish a freedom of speech doctrine, nor does she argue that her theory is the only way to understand free speech jurisprudence. She states, instead, that she has engaged in this analysis, because "only when we know why the doctrine has emerged and what purposes it serves will we know whether and how to modify it." Thus, to the extent that she evaluates particular cases within this article, it seems that her assertions of whether particular decisions are "correct" or "incorrect" may refer to whether the reasoning of the decisions fits with the theory of jurisprudence she is explicating rather than her beliefs regarding the proper outcomes of the cases.
Ms. Kagan took a somewhat different, though consistent, perspective in her earlier article entitled "Regulation of Hate Speech and Pornography After R.A.V." The focus of this article, rather than being motivated by an attempt to understand the Court's underlying aims, seemed to be more on crafting statutes that would comport with the Court's existing case law, which takes into account what Ms. Kagan would argue are the Court's underlying aims. Ms. Kagan suggests various ways for crafting statutes that would restrict pornography and hate speech that she believes could be constitutional under the Court's then-current doctrine.
This report will explain these articles in further detail, as well as an additional, shorter piece, discussing the First Amendment implications of codes of conduct at public universities. This report will not be updated.