Thursday, July 01, 2010

Elena Kagan: Redistribution of Speech - Spreading the Silence Around

We've seen (heard) the video's of her arguing before the SCOTUS for a law that would effectively allow the banning of books (if not, see below), but not to worry, they wouldn't actually do it (!), but this one may be worse, because it was her idea which she wrote and published, and presumably believes in. She wrote a wackademic article in the '90's, “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine.” (that title alone gives me the Orwellian creeps, some highlights from it are here), that introduced some new 'figures of speech' which ought to scare the bejeezus out of everyone, Left, Right and Center, including my favorite,
"redistribution of speech opportunities."
She doesn't make the mistake of actually advocating such a thing, she merely 'raises consciousness' regarding the issue (which she introduced) - typical wackademic passive voice tactics.

The rationale for it is that 'loud voices shouldn't be allowed to drown out other viewpoints' - which is all the license any enterprising regulator worth their salt should need to spread the silence around. Why would they? Because they are in the business of Power - growing, tending and harvesting power - that is what they do, and this new concept would produce a banner crop of power berries, let me tell you.

Couple this paper, with her argument before the SCOTUS, the gist of which is here between :16 & 2:41on the video,

Kagan: The gov't view is that although 441b does cover full length books, that there would be a quite good as applied challenge applied to any attempt to apply 441b in that context, and I should say that the FCC has Never applied 441b in that context, so for 60 years a book has Never been an issue.
Scalia: "What about the overbreadth doctrine?... If it's overbroad, it's invalid, what happened to that?"
Kagan: I don't think that it would be substantially overbroad justice scalia if I tell you that the FEC has never applied this statute to a book, to say that it doesn't apply to books is to take off essentially nothing.
Roberts: We don't put our first amendment rights in the hands of FEC bureaucrats. ...
Kagan: There has never been an enforcement action for books, nobody has ever suggested, nobody in congress, nobody in the administrative apparatus has ever suggested that books pose any kind of corruption problem, so I think that it would be a good as applied challenge with respect to that.
Scalia: So, you're a lawyer, advising somebody who is about to come out with a book and you say don't worry, the FEC has never tried to send somebody to prison for this, this statute covers it, but don't worry, the FEC has never done it. Is that going to comfort your client? I don't think so."
If you can't see the writing on the wall... it may be because you're ability to comprehend it has already been redistributed. And for those of you wanting to give her 'a fair shake', sorry, but I've already been shook.
video

1 comment:

mushroom said...

Again, it is not equal opportunity to speak that the Statists pursue, it is equal outcomes. Rush's 20 million listeners need to be redistributed to NPR and Ed Schultz to make speech "fair".

The First Amendment has nothing to do with fairness, but with freedom. Freedom means that, if you're good at what you do, more people will listen to you. If you're a babbling, incoherent idiot who can never deliver a logical argument -- or even create amusing satire -- you're probably going to fail miserably in any given medium.

Kagan is stupid. She has no business on the Supreme Court, but she's going to be there causing trouble for the next thirty years. In 2012, if I were the Republicans, I'd be holding up pictures of Sotomayer and Kagan with the caption "Elections have consequences".