The summer of 2010 once again included the nomination and confirmation of a new U.S. Supreme Court justice. But like Justice Sonia Sotomayor's ascent to the Court in the summer of 2009, the proceedings involving Justice Elena Kagan provided fodder for ample news coverage but little more than hints about her position on issues of media law.
On Aug. 5, 2010, the Senate voted 63 to 37 to confirm Kagan to succeed retiring Justice John Paul Stevens; she was sworn in at the Supreme Court on August 7. Kagan was serving as U.S. Solicitor General at the time of her nomination on May 10, 2010, a position she had held since March 2009. Kagan was dean of Harvard Law School beginning in 2003 and previously taught at Harvard as well as the University of Chicago Law School. During the Clinton administration Kagan served as Associate White House Counsel, Deputy Assistant to the President for Domestic Policy, and Deputy Director of the Domestic Policy Council. Clinton also nominated Kagan to the U.S. Court of Appeals for the D.C. Circuit in 1999, but the Senate Judiciary Committee allowed the nomination to lapse after Clinton left office.
Kagan's views on media law and the First Amendment have proven difficult for journalists or commentators to ascertain. She has no experience as a judge, and offered few specific answers to questions about media law topics in her confirmation hearings. Much of the coverage focused on Kagan's academic publications and the cases on which she worked as a litigator in private practice and for the government. Reporters were careful to caution, however, that because her experience as an attorney was work on behalf of a client, her arguments could not be considered as insight into her personal views on a given matter. Although Kagan's academic work on the First Amendment was considered by many to be high caliber, it did not advocate for particular legal doctrines or approaches. In a report on Kagan's media law background, the Reporters Committee for Freedom of the Press (RCFP) observed that the nominee "has worked on free-speech and free-press issues more than any recent high court nominee, but her writings tend to explore the underpinnings of current doctrines and standards, rather than argue for or against any particular approach."
For example, in a 1996 University of Chicago Law Review article titled "Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine," Kagan argued that the practice of examining government motives when regulating speech has been an important undercurrent to U.S. Supreme Court First Amendment jurisprudence, even if the Court has not acknowledged it. To illustrate her point, Kagan observed that laws prohibiting specific content—like racist speech—are subject to higher standards of review than those that are content-neutral, because the content-based restrictions suggest the government is favoring one message over another, something she called "illicit motive."
Kagan's article resisted sweeping conclusions and did not recommend a change in direction or doctrine for the Supreme Court. "What I provide is simply a reading—I think the best reading—of the Court's First Amendment cases," Kagan wrote. She called her conclusions "primarily a descriptive theory" and added, "I make no claim that a sensible system of free speech should be concerned exclusively with governmental motivation."
One issue Kagan addressed directly in her nomination hearings, however, was whether cameras should record oral arguments at the U.S. Supreme Court, telling the Senate Judiciary Committee "I have said that I think it would be a terrific thing to have cameras in the courtroom. ... I think it would be a great thing for the institution, and more important, I think it would be a great thing for the American people." The answer is likely to encourage camera advocates such as Sen. Arlen Specter (D-Pa.), who has sponsored a bill that would require the court to allow video coverage of oral arguments unless a majority of justices opposed it because it would violate the due process rights of the parties involved. Specter's bill is S. 446, titled "A bill to permit the televising of Supreme Court proceedings." In August 2009, then-nominee Sotomayor also offered support for cameras in the Court, saying she had "positive experiences" with cameras as a lower court judge and would serve as a "new voice" in the Court's ongoing debate on the issue. (See "Critics, Commentators, and Cases Offer Few Glimpses at How Sotomayor can be Expected to Rule on Media Law" in the Summer 2009 issue of the Silha Bulletin.) The nine justices have offered a variety of views on the topic, with most expressing ambivalence or opposition. C-Span offers many of the justices' public comments on the issue on its website at http://www.c-span.org/CamerasInCourt/default.aspx.
In the June 30 session of the confirmation hearings, Sen. Amy Klobuchar (D-Minn.) asked Kagan about a 1993 book review in which Kagan said the Supreme Court's decision in New York Times v. Sullivan, 376 U.S. 254 (1964), had a "dark side" in that it "allows grievous reputational injury to occur without monetary compensation or any other effective remedy." Sullivan was a unanimous decision that established that public officials must prove a defamatory message was published with "actual malice": knowledge that the message was false or "reckless disregard" for whether it was false or not. Kagan told the committee that "even as we understand the absolute necessity ... for protection of speakers ... from defamation suits, we should also appreciate that people who did nothing to ask for trouble ... can be greatly harmed when something goes around the Internet, and everybody believes something false about a person. ... That's a real harm, and the legal system should not pretend that it's not."
The article Klobuchar referenced was a review of Anthony Lewis' Make No Law: The Sullivan Case and the First Amendment that appeared in vol. 18, issue 1 of Law and Social Inquiry. (Lewis delivered the 2002 Silha Lecture. See "Silha Lecturer Anthony Lewis Speaks to Packed House" in the Fall 2002 issue of the Silha Bulletin.) In the review, Kagan also wrote that "the adverse consequences of the actual malice rule do not prove Sullivan itself wrong, but they do force consideration of the question whether the Court, in subsequent decisions, has extended the Sullivan principle too far." But Kagan also wrote that the questions she raised "in no way prove that the Court decided Sullivan incorrectly or that the Court now should reconsider its holding."
Senators also asked about the Supreme Court's controversial January 2010 decision in Citizens United v. Federal Election Commission, 558 U.S. 50 (2010). The Court ruled that a federal campaign law impermissibly discriminated against the First Amendment rights of corporations to support political candidates for political office through financial contributions. Critics of the decision, including President Barack Obama, have claimed it will lead to too much corporate influence on the election process. Kagan, as Obama's solicitor general, led the federal government's defense of the law that was struck down. In the nomination hearings, Kagan refused to directly answer whether she agreed with the Citizens United decision, saying only "I did believe we had a strong case to make. I tried to make it to the best of my ability." The Associated Press (AP) reported May 18 that Specter said Kagan had criticized the Court's ruling in a closed-door meeting. "She said she thought the Court was not sufficiently deferential to Congress," Specter said. (For Bulletin coverage of the Citizens United case, see "Supreme Court Strikes Down Campaign Finance Regulation for Corporations" in the Winter/Spring 2010 issue of the Silha Bulletin.)
Another significant case that came before the U.S. Supreme Court during Kagan's tenure as solicitor general was United States v. Stevens, 130 S. Ct. 1577 (2010), in which the Court struck down a federal law that imposed criminal penalties for the creation, sale, or possession of "depiction[s] of animal cruelty" saying it was overly broad and violated the First Amendment right to free speech. (See "Supreme Court Strikes Down Law Banning Depictions of Animal Cruelty, Citing 'Alarming Breadth' of Statute" in the Winter/Spring 2010 issue of the Silha Bulletin.)
In its briefs and oral argument before the Supreme Court, Kagan's office defended the constitutionality of the statute, observing that the Court had found that the First Amendment does not protect other categories of speech, such as obscenity, libel, and "fighting words" because those categories "are of such slight social value ... that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." The government argued that the speech banned by the law failed "a categorical balancing analysis, comparing the expressive value of the speech with its societal costs."
The Court's opinion, written by Chief Justice John Roberts, rejected the government's argument. Roberts wrote that the Court did not have "a freewheeling authority to declare new categories of speech outside the scope of the First Amendment." He continued, "the First Amendment's guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. ... The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it."
On the Stevens case, the RCFP report said, "the solicitor general is charged with defending all federal laws before the court. But in the brief on the merits of the case ... the office went farther than just defending this particular law, and instead argued that Congress can create entire categories of unprotected speech any time it finds that the value of the speech does not outweigh its cost to society. Such a broad standard would surely open the door for a wide range of speech restrictions, and is almost impossible to reconcile with the plain meaning of the First Amendment." The RCFP report is available online via http://www.rcfp.org/newsitems/index.php?i=11431.
Another case that the solicitor general's office argued before the Supreme Court under Kagan was Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010). There the Court upheld a federal law that bans "knowingly provid[ing] material support or resources to a foreign terrorist organization." In that case, the Court ruled that the law could survive an application of "strict scrutiny"—the most demanding standard applied to government restrictions of speech. The government had argued that the Court should instead apply a lower standard, "intermediate scrutiny," since it argued that the statute primarily regulated conduct and only "impose[d] an incidental burden on expression." (For more on the Holder case, see "In Holder, Court Upholds Ban on Speech Supporting Terrorism " on page 9 of this issue of the Silha Bulletin.)
Meanwhile, the AP reported June 22 that "Kagan sought secrecy in 4 of 5 FOIA cases" as solicitor general, a position that was "at odds with a promise of transparency made by her boss and top client, President Barack Obama." However, the AP report observed that although "the solicitor general generally determines which cases to take to the Court and what to argue," the positions she argued on behalf of the federal government were not necessarily indicative of her personal views on the law, and may not reflect how she would rule on similar cases.
In the most high profile case involving the federal Freedom of Information Act (FOIA), 5 U.S.C. § 552, Kagan asked the U.S. Supreme Court to reverse a 2nd Circuit U.S. Court of Appeals decision that ordered the release of 44 photographs depicting detainee mistreatment by U.S. troops. In the government's petition for writ of certiorari, Kagan argued, "in the judgment of the president and the nation's highest-ranking military officers, disclosure of the photographs at issue here would pose a substantial risk to the lives and physical safety of United States and allied military and civilian personnel in Iraq and Afghanistan." The Court ultimately vacated and remanded the 2nd Circuit decision after Congress passed the Protected National Security Documents Act of 2009, which specifically exempted the photos from release under FOIA. (See "Supreme Court Vacates and Remands Detainee Photo Case after Congressional Action" in the Fall 2009 issue of the Silha Bulletin.) The Court's order is Department of Defense v. ACLU,130 S. Ct. 777 (2009); the 2nd Circuit decision was ACLU v. Department of Defense, 543 F.3d 59 (2d Cir. 2008).
Another case, Consumers' Checkbook v. Dept. of Health and Human Services, involved the question of whether releasing Medicare data on claims paid would violate physicians' personal privacy. Consumers' Checkbook, which describes itself as "a nonprofit consumer information and service resource," argued that the information could be paired with other publicly available data to measure physician experience, quality, and efficiency. In January 2009, the D.C. Circuit U.S. Court of Appeals ruled that the information could be withheld under FOIA Exemption 6, which applies to "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy." In a brief urging the U.S. Supreme Court not to hear Consumers' Checkbook's appeal of the 2nd Circuit ruling, Kagan wrote "the fact that some arithmetic, using publicly available fee schedules, might be necessary to compute the precise amount of a physician's income is no privacy protection for the physician at all." The Court denied Consumers' Checkbook's petition for certiorari on April 19, 2010. Consumers' Checkbook v. Dept. of Health and Human Services, 554 F.3d 1046 (D.C. Cir. 2009), cert. denied,130 S. Ct. 2140 (2010)
According to the AP on June 22, Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington (CREW), said the government's position in the Consumers' Checkbook case was "kind of a ridiculous argument." Sloan said the government did not argue that the information Consumers' Checkbook sought was private, but rather that the information, combined with other things, could permit people to figure out something the government does not want public. "That's really going outside the four corners of the [FOIA] statute," Sloan said.
The AP cited two other cases in which Kagan, in her capacity as solicitor general, fought the disclosure of records under FOIA by urging the Supreme Court not to grant certiorari when a lower court had ruled the records should not be released. In Loving v. Department of Defense, 550 F.3d 32 (D.C. Circ. 2008), a federal appeals court upheld a lower court's finding that documents relating to the president's review of a military death sentence were covered by FOIA Exemption 5, which applies to "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." In Berger v. Internal Revenue Service, 288 Fed. Appx. 829 (3rd Cir. 2008), a federal appeals court upheld a lower court's ruling that an IRS officer's time sheets were exempt from FOIA under Exemption 6 and also could not be released without consent under the Privacy Act, 5 U.S.C. § 552a. The U.S. Supreme Court denied certiorari in both cases. Loving v. DOD, 130 S. Ct. 394(2009) and Berger v. IRS, 129 S. Ct. 2789 (2009)
However, the AP observed that Kagan's office has urged the Supreme Court to review a case in which the 3rd Circuit ruled that a telecommunications company could claim the FOIA personal privacy exemption. The government's petition for certiorari said the 3rd Circuit ruling is at odds with traditional interpretations of the law, and that it threatens to block the release of information "concerning corporation malfeasance in government programs that the public has a right to review." The Court has not decided whether to hear the case, AT&T Inc. v. Federal Communications Commission, 582 F.3d 490 (3d Cir. 2009). If it does, Kagan will probably recuse herself due to her earlier involvement in the case.
Stacy Allen, a partner with law firm Jackson Walker in Austin, Texas wrote in a blog post on the firm's website that "Kagan cannot be faulted for doing her job as Solicitor General by vigorously defending the statutes which were ultimately declared unconstitutional, nor does her advocacy for the government necessarily reveal her own views about speech." Allen continued, "the question of how a Justice Kagan—freed from the constraints of her client's position or the classroom—would impact the Roberts Court's ... approach to free speech thus remains tantalizingly unanswered."
- Patrick File
Silha Fellow and Bulletin Editor