Posted by: captainfalcon | May 12, 2010

Update on the Babbling Brooks

Yesterday I noticed that Kagan’s descriptive claim[1] about First Amendment jurisprudence – “the primary purpose of courts reviewing speech restrictions should be to ferret out impermissible governmental motives–not necessarily to protect individual expression or the marketplace of ideas” – is “a controversial, easily-distorted, descriptive claim.” So it is:

According to Kagan, the government may limit speech not only if the consequences of free expression are deleterious to public safety and order, but also if the “motive” of the government is pure – that is, free of any consideration of the self-interest of public officials, or any a priori evaluation of some ideas as inherently and permanently invalid.

I am simplifying her argument considerably, of course: in her article for the University of Chicago Law Review she makes a complex, and even an elegant argument – an argument, I would add, that is deadly dangerous to the concept of individual liberty.

<a href="#X" id="refX"><sup>[FOOTNOTE]</sup></a>

[1] As Kagan puts it: “I argue, notwithstanding the Court’s protestations in O’Brien, that First Amendment law, as developed by the Supreme Court over the past several decades, has as its primary, though unstated, object the discovery of improper governmental motives. The doctrine comprises a series of tools to flush out illicit motives and to invalidate actions infected with them. Or, to put the point another way, the application of First Amendment law is best under- stood and most readily explained as a kind of motive-hunting.”


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