Supreme Court nominee Elena Kagan has expended a great deal of intellectual energy searching for a rationalization that would preserve freedom of speech for viewpoints she likes while imposing government controls on speech she does not like.
Consider her approach to the 1991 Supreme Court case of Rust v. Sullivan. The issue here was whether the Department of Health and Human Services violated the right of free speech when it published regulations stating that federal tax dollars would not be provided under the Title X family planning program to clinics that either counseled people to have abortions, or referred people to abortionists, or advocated abortion.
Pro-abortion family planning providers sued. They argued -- believe it or not -- that the First Amendment requires the taxpayers to pay them to counsel pregnant women to get abortions, to direct pregnant women to abortionists and to agitate in our society in favor of the legalized killing of unborn babies generally.
In a wholly sane world, this argument would have been laughed out of court. In 1991, five generally sane members of the Supreme Court essentially did just that.
Writing for the majority, Chief Justice William Rehnquist said "the government has no obligation to subsidize even the exercise of fundamental rights, including 'speech rights.'"
Rehnquist did not put it this way, but to say otherwise would mean, for example, that the government must subsidize Tea Party Patriots when they attend a rally because they are exercising their First Amendment right to assemble, or that the government must subsidize Citigroup when it lobbies President Obama because it is exercising its First Amendment right to petition the government for a redress of grievances.
You will probably not be surprised to learn Elena Kagan has not called for a Tea Party travel subsidy based on the First Amendment. In two law journal articles, however, she did attack the Supreme Court for its decision in Rust v. Sullivan, suggesting the court's decision was an illegitimate act of "viewpoint discrimination."
"There, the government favored anti-abortion speech over abortion advocacy, counseling and referral, and the Court, to its discredit, announced that because the selectivity occurred in the context of a governmental funding program, the presumption against viewpoint discrimination was suspended," she wrote in an 1993 essay in The University of Chicago Law Review.
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