A year before that, Kagan wrote a 48-page treatise in The Supreme Court Review attempting to carve out an entirely new constitutional doctrine on freedom of speech based on a concept she called "content-based underinclusion."
The concept was based on the notion that from a First Amendment perspective there is no essential difference between the government prohibiting some forms of speech and the government enacting a program that funds some forms of speech. In this essay, she presented a highly convoluted argument that eventually twisted back around to making a judgment about the Supreme Court allowing the government to fund family planning programs that did not promote abortion while declining to fund those that did.
At first, Kagan seemed to argue that the Constitution required the government either to fund both abortion-excluding and abortion-including family planning services, or to fund no family planning services at all. Thus, the government would avoid discrimination.
"The regulations at issue in Rust can hardly be understood except as stemming from government hostility toward some ideas (and their consequences) and government approval of some others: the subsidization scheme, as the majority itself noted, reflected a 'value judgment,'" she wrote. "Further, the regulations, in treating differently opposing points of view on a single public debate, benefited some ideas at the direct expense of others and thereby tilted the debate to one side. For both these reasons, a refusal to fund any speech relating to abortion would have been constitutionally preferable to the funding scheme that the regulations established."
But then Kagan turned around and seemed to argue that if the public perceives that a certain type of speech causes real harm -- such as speech promoting the smoking of tobacco -- then perhaps the government can prohibit that speech.
"The question that remains open for me is whether profound and indisputable harms can be taken into account for the purpose of lowering the standard of review applicable to viewpoint-based underinclusion -- whether and when they may negate our usually justifiable concerns about the effects and motives of such government action," she wrote. "It may be possible to develop guidelines for this purpose -- guidelines that will isolate and harshly confine a set of underinclusion cases in which viewpoint distinctions should be tolerated."
In other words, Kagan is saying: Maybe we can develop a rule that allows us to shut up those people whose speech offends us, while we liberals get to keep talking.
Kagan tellingly never discusses the actual language of the First Amendment, which simply says, "Congress shall make no law ... abridging the freedom of speech." This is not a complicated or ambiguous rule. The answer to the question of what Congress can and cannot fund -- other than that it cannot fund an abridgement of speech -- is not found in this amendment. It is found in the sharply limited substantive powers that elsewhere in the Constitution are delegated to the federal government.
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