# Supreme Court Nominee Elena Kagan: Selected Freedom of Speech Scholarship

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URL: https://www.frixlaw.com/law-library/documents/crs%3AR41290

## Record

- **Collection:** Congressional research report
- **Document type:** CRS Report
- **Published:** June 18, 2010
- **Citation:** R41290

## Text

Supreme Court Nominee Elena Kagan:
Selected Freedom of Speech Scholarship
-name redactedLegislative Attorney
June 18, 2010

Congressional Research Service
7-....
www.crs.gov
R41290

CRS Report for Congress
Prepared for Members and Committees of Congress

Supreme Court Nominee Elena Kagan: Selected Freedom of Speech Scholarship

Summary
President Obama has nominated his Solicitor General, Elena Kagan, to be the next Supreme
Court Justice. If confirmed, she would fill the seat being vacated by Justice John Paul Stevens
upon his retirement at the end of the 2009/2010 term. Prior to her term as Solicitor General, Ms.
Kagan, in her capacity as an academic and scholar, wrote influential pieces analyzing free speech
jurisprudence.
In particular, Ms. Kagan wrote a law review article entitled “Private Speech, Public Purpose: The
Role of Government Motive in First Amendment Doctrine.” This article is best described as an
attempt to understand the underlying issues free speech doctrine addresses. Ms. Kagan argues,
basically, that the Supreme Court scrutinizes most closely speech restrictions that carry the most
risk of having been enacted to serve improper government motives (e.g., to benefit certain ideas,
to suppress particular ideas, or to serve legislative self-interest). Ms. Kagan opens the article by
noting that the Supreme Court claims that the purpose of Congress (or any governmental body)
“is not a basis for declaring legislation unconstitutional.” Ms. Kagan posits, nonetheless, that free
speech jurisprudence is an indirect (even unconscious) attempt by the Court to ferret out improper
government motives where speech restrictions are at issue. In this way, she explains seeming
inconsistencies in First Amendment law. For example, she uses her improper motive theory to
explain why it is permissible for the government to ban all fighting words, but impermissible for
the government to ban only fighting words motivated by racial or ethnic discrimination. Under
Ms. Kagan’s theory, it is more likely that the latter restriction was enacted pursuant to the
improper governmental motive of suppressing ideas with which legislators disagree than the
former, making the latter restriction unconstitutional, while the former withstands scrutiny.
Ms. Kagan does not appear to argue that the theory she describes is the best possible way to
establish a freedom of speech doctrine, nor does she argue that her theory is the only way to
understand free speech jurisprudence. She states, instead, that she has engaged in this analysis,
because “only when we know why the doctrine has emerged and what purposes it serves will we
know whether and how to modify it.” Thus, to the extent that she evaluates particular cases within
this article, it seems that her assertions of whether particular decisions are “correct” or “incorrect”
may refer to whether the reasoning of the decisions fits with the theory of jurisprudence she is
explicating rather than her beliefs regarding the proper outcomes of the cases.
Ms. Kagan took a somewhat different, though consistent, perspective in her earlier article entitled
“Regulation of Hate Speech and Pornography After R.A.V.” The focus of this article, rather than
being motivated by an attempt to understand the Court’s underlying aims, seemed to be more on
crafting statutes that would comport with the Court’s existing case law, which takes into account
what Ms. Kagan would argue are the Court’s underlying aims. Ms. Kagan suggests various ways
for crafting statutes that would restrict pornography and hate speech that she believes could be
constitutional under the Court’s then-current doctrine.
This report will explain these articles in further detail, as well as an additional, shorter piece,
discussing the First Amendment implications of codes of conduct at public universities. This
report will not be updated.

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Supreme Court Nominee Elena Kagan: Selected Freedom of Speech Scholarship

Contents
Introduction ................................................................................................................................1
“Private Speech, Public Purpose: The Role of Government Motive in First Amendment
Doctrine” .................................................................................................................................1
The Concept of Impermissible Motive...................................................................................2
The Doctrine of Impermissible Motive..................................................................................4
The Distinction Between Content-Based and Content-Neutral Laws................................4
Suspect Content-Neutral Laws ........................................................................................7
Safe Content-Based Laws ............................................................................................. 11
The Distinction Between Direct and Incidental Restrictions on Speech.......................... 15
The Underpinnings of Motive Analysis ............................................................................... 17
“Regulation of Hate Speech and Pornography After R.A.V.” ...................................................... 18
The Presumption Against Viewpoint Discrimination............................................................ 18
New Approaches ................................................................................................................. 21
Conduct ........................................................................................................................ 21
Viewpoint-Neutral Restrictions ..................................................................................... 22
Obscenity...................................................................................................................... 23
Exceptions to Viewpoint Neutrality ............................................................................... 23
Conclusion.......................................................................................................................... 24
“When a Speech Code Is a Speech Code: The Stanford Policy and the Theory of
Incidental Restrictions” .......................................................................................................... 25

Contacts
Author Contact Information ...................................................................................................... 25

Congressional Research Service

Supreme Court Nominee Elena Kagan: Selected Freedom of Speech Scholarship

Introduction
President Obama has nominated his Solicitor General, Elena Kagan, to be the next Supreme
Court Justice. If confirmed, she would fill the seat being vacated by Justice John Paul Stevens
upon his retirement at the end of the 2009/2010 term. Prior to her term as Solicitor General, Ms.
Kagan, in her capacity as an academic and scholar, wrote influential pieces analyzing free speech
jurisprudence. This report will discuss some of her most significant scholarly articles related to
the First Amendment guarantee of freedom of speech.
In her First Amendment scholarship, Ms. Kagan seems primarily concerned with developing an
understanding of the evolution of the Supreme Court’s First Amendment jurisprudence. Ms.
Kagan does not appear to be arguing for a change in First Amendment analysis, or hinting
towards how she believes cases would be better analyzed. Rather, Ms. Kagan argues that First
Amendment case law is designed to prevent the government from enacting laws that are more
likely to spring from improper motives. In another article, she offers suggestions for developing
statutes that would be consonant with her understanding of First Amendment case law, and,
therefore, more likely to be upheld as constitutional. It is unclear how this scholarship would
apply or even if it would apply in the context of her position as a Supreme Court Justice, if she is
confirmed.

“Private Speech, Public Purpose: The Role of
Government Motive in First Amendment Doctrine”
The most comprehensive article (over 100 pages) Ms. Kagan has written on the First Amendment
is “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment
Doctrine.”1 This article argues that, at bottom, First Amendment doctrine is concerned with using
objective tests to accomplish indirectly what it cannot do directly: revealing and rejecting
(“flushing out” in Kagan’s words) laws that may have, at their core, an improper government
motive. She calls it the motive-based theory of First Amendment doctrine. Ms. Kagan
hypothesizes that the Court cannot directly inquire into government motive to enact a particular
law, because, among other things, the government is likely able to advance a legitimate interest in
enacting virtually any law. Therefore, her argument continues, the Court has developed a schema
that more closely scrutinizes laws that are at a greater risk of being improperly motivated in their
enactment. And, as would be logically expected, the Court also scrutinizes less closely laws that
carry less risk of improper motive. In the course of building this argument, Ms. Kagan analyzes
many aspects of First Amendment law including campaign finance cases, indecency cases,
fighting words cases, and the logic of the secondary effects doctrine.
It is a complex article and every aspect of it cannot be addressed here. It is also important to note
that the article was published in 1996. Many developments in First Amendment jurisprudence
have occurred since then. To the extent possible, recent developments will be mentioned and
compared to Ms. Kagan’s arguments. As a result of the article’s age, it is not clear how Ms.
Kagan’s view of First Amendment doctrine may have changed, if it has at all.
1

63 U.Chi. L. Rev. 413 (1996) [hereinafter Private Speech, Public Purpose].

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Supreme Court Nominee Elena Kagan: Selected Freedom of Speech Scholarship

Ms. Kagan begins her analysis by recognizing that the Supreme Court has said that “the purpose
of Congress ... is not a basis for declaring a law unconstitutional.”2 Courts instead are to focus on
the effects of a particular speech restriction on First Amendment freedoms. Consequently, most
analysis of First Amendment doctrine focuses on the potential effects of the restrictions to attempt
to create coherent theories. Ms. Kagan believes these effects-focused theories are ultimately
unsatisfying on their own to explain First Amendment doctrine. She argues instead that First
Amendment doctrine, in spite of the Supreme Court’s protestations, is primarily (though perhaps
not solely) motivated by a desire to discover improper government motive.
To explain why Ms. Kagan thinks her government motive theory is necessary to understand First
Amendment doctrine, she begins with an example of a case that, in her opinion, could only make
sense in the context of First Amendment doctrine if the Court is primarily concerned with
improper government motive. In R.A.V. v. City of St. Paul,3 the Supreme Court invalidated a
statute that prohibited fighting words based upon race, color, etc. The outcome of this case is
strange, Ms. Kagan notes, because fighting words have been identified as a category of speech
that falls outside the protections of the First Amendment and can be prohibited completely. Thus,
under an effects-based theory, it likely would not matter constitutionally if only a subset of this
category of speech was prohibited. The Court nonetheless invalidated the statute despite the fact
that it punished only a subset of a category of unprotected speech. Ms. Kagan hypothesizes that
this outcome can be best understood when viewed as an attempt by the Court to guard against
laws that have a greater likelihood of being motivated by an improper purpose.4 Even within the
spheres of unprotected speech, the Court will invalidate a statute if it appears that “official
suppression of ideas [may be] afoot,” because, under Ms. Kagan’s theory, preventing the official
suppression (or support) of particular ideas is the Court’s primary concern.
After explicating this example, Ms. Kagan embarks upon a methodical and thorough explanation
and analysis of her theory. She does so by offering other holistic and widely accepted theories of
First Amendment jurisprudence and attempting to fit aspects of First Amendment jurisprudence
with those theories as rigorously as she attempts to fit those aspects of doctrine with the
government motive theory. She ultimately concludes that, in general, her government motive
theory does the best job of explaining First Amendment doctrine, but in arriving at that
conclusion she makes numerous observations where the other First Amendment doctrine models
may explain doctrine better than the theory she advances. Her analysis is rigorous, but she does
not suggest that it is without its flaws. She acknowledges room for disagreement with her theory,
but appears to believe, nonetheless, that she has devised the best explanation for then-current First
Amendment jurisprudence possible.

The Concept of Impermissible Motive
Ms. Kagan acknowledges that her attempt to reconcile First Amendment doctrine is hardly the
first endeavor of its kind.5 Throughout her article, she compares how her improper motive theory

2

Id. citing United States v. O’Brien, 391 U.S. 367, 383 (1968).
505 U.S. 377 (1992).
4
Private Speech, Public Purpose, supra note 1, 63 U. Chi. L. Rev. at 421-23.
5
Id. at 423.
3

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Supreme Court Nominee Elena Kagan: Selected Freedom of Speech Scholarship

fits with two other theories that attempt to explain First Amendment doctrine: the speaker-based
theory and the audience-based theory.6
In contrast to the government motive or improper motive theory, which focuses on the possible
underlying reasons for enacting a particular speech restriction, the speaker- and audience-based
theories are effects based. In other words, they focus upon the effects speech restrictions have on
the marketplace of ideas. The speaker-based theory hypothesizes that the primary value of the
First Amendment resides in the conferral of expressive rights and opportunities on speakers.
Therefore, laws under this theory should be evaluated based upon their effect on the ability of
individuals to speak on particular subjects, from particular points of view, or in particular ways.
“Quantity, in other words, is of the essence; as one proponent of this model has stated, First
Amendment doctrine should concern itself with how much a law ‘reduces the sum total of
information or opinion disseminated.’”7 The audience-based theory focuses instead on the quality
of the expressive arena in order to make sure that every idea worth expression enters the
marketplace. The primary goal is to enable the audience to “arrive at truth and make wise
decisions, especially about matters of public import.” What matters under this theory, according
to Alexander Meiklejohn, “is not that everyone shall speak, but that everything worth saying shall
be said.”8 These two theories are compared with Ms. Kagan’s “government motive-based” theory,
which claims that “what is essential is not the consequences of a regulation but the reasons that
underlie it” and that where a law leaves too much room for impermissible underlying
motivations, the court will be more likely to strike it down as a result of that suspicion.
Assuming there is an attempt to flush out impermissible motives, which motives are
impermissible? According to Ms. Kagan, there are likely four impermissible government motives
of which the Court is suspicious. Ms. Kagan argues that the Court is suspicious of laws where it
appears the government is restricting speech because it disagrees with the message being
conveyed. Furthermore, the government should not be allowed to restrict speech because the
ideas espoused threaten officials’ self-interest. Logically consistent with the first and second
suspicions, Ms. Kagan finds that the Court is suspicious of government attempts to provide
advantages to favored ideas or ideas that would advance the self-interests of lawmakers. Lastly,
the Court is suspicious of laws that would use the opinions of citizens to define what can and
cannot be said. The basic inquiry into whether hostility towards particular ideas played a role in
enacting any law turns on “whether the government would have treated identically ideas with
which it disagreed, ideas with which it agreed, and ideas to which it was indifferent, to the extent
that those ideas caused the same harms.”9 This inquiry would permit regulations of speech
seeking to address harms unrelated to ideology expressed and would command invalidation of
laws that presumed a harm based upon the expression of ideas disfavored by the government, as,
Ms. Kagan argues, First Amendment doctrine does.
Ms. Kagan argues that all free speech cases dealing with restrictions on the speech of private
persons (she leaves the discussion of government speech for another day) can be explained, at
6

It should be noted that Ms. Kagan is responding to competing theories of doctrine, not to competing analysis of case
law. The distinction is important, because Kagan is attempting to offer a theory to explain why First Amendment
doctrine is consistent. She does not, however, appear to be arguing that the Court or that others analyze cases
improperly.
7
Private Speech, Public Purpose, supra note 1, 63 U. Chi. L. Rev. at 424, citing Martin H. Redish, The Content
Distinction in First Amendment Analysis, 34 Stanford L. Rev. 113, 128 (1981).
8
Id. at 425.
9
Id. at 431.

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Supreme Court Nominee Elena Kagan: Selected Freedom of Speech Scholarship

least in part, by the Court’s indirect inquiry into whether the law was motivated by the above
impermissible reasons. She acknowledges that in United States v. O’Brien,10 the Supreme Court
said that the purpose of Congress (or any governmental body) “is not a basis for declaring
legislation unconstitutional.”11 However, rather than considering this a declaration that the Court
does not inquire into governmental motive when conducting a free speech analysis, Ms. Kagan
argues that O’Brien merely clarifies the means by which the inquiry is conducted. That is,
because the Court cannot conduct an effective direct inquiry into government motive, the Court
was forced to devise a doctrine (whether consciously or unconsciously) that conducted the
inquiry indirectly. This indirect inquiry places a higher burden on laws carrying the most risk of
improper motivation and a lesser burden on laws seen to carry less risk of impropriety.

The Doctrine of Impermissible Motive
After describing the other possible theories for the development of First Amendment doctrine,
Ms. Kagan puts all three theories to the test.12 She analyzes the extent to which any of them can
explain why courts treat certain speech restrictions more or less harshly than others. She
concludes ultimately that the government motive theory is the better explanation, though perhaps
not the perfect explanation.
She states that if one accepts the premise that the First Amendment prohibits speech restrictions
stemming from hostility towards a message, sympathy towards a message, or the self-interest of
lawmakers and further accepts that it is difficult if not impossible to prove that a particular law is
so motivated, then one would probably come up with an indirect method of flushing out
impermissible motives that is nearly exactly like the First Amendment doctrine actually in
operation. She claims four rules would likely arise if courts had affirmatively followed her logic.
In her view, the four primary rules that in fact have arisen to constitute First Amendment doctrine
are identical to her predicted rules.

The Distinction Between Content-Based and Content-Neutral Laws
In general, the Court reviews more strictly laws that discriminate against speech based upon its
content and less strictly laws that do not so discriminate. To explain this, Ms. Kagan uses laws
that might restrict billboards as an example. A law that banned all billboards would probably be
constitutional, under current doctrine. A law that banned all political billboards would be much
less likely to be upheld as constitutional. A law that banned only billboards paid for by the
Democratic party would almost certainly be unconstitutional. She then proceeds to use the
speaker-based, audience-based, and government-motive-based models to attempt to explain this
general rule.
She argues that the speaker-based theory would not produce this rule.13 Quantity of speech is all
under the speaker-based theory. Therefore, Ms. Kagan argues that this rule would not make sense
under the speaker-based theory because the law most likely to be constitutional (the one banning
all billboards) is also the law that restricts the most speech and the most speakers. It would be
10

391 U.S. 637 (1968) (upholding a criminal conviction for burning a draft card).
Private Speech, Public Purpose, supra note 1, 63 U. Chi. L. Rev. at 442. See O’Brien, 391 U.S. at 383.
12
Id. at 443.
13
Id. at 444.
11

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antithetical to an organizing principle of maximization of opportunities for speakers for the law
that restricts the most speech to be the law that is most likely constitutional.
The audience-based theory makes more sense, in Ms. Kagan’s opinion, but it provides an
imperfect explanation of this rule in doctrine. 14 Under the audience-based theory it makes sense to
treat content-based restrictions more harshly than content-neutral restrictions because restrictions
based upon content might disparately affect the ideas available in the marketplace, causing
distortion. However, that statement, in Ms. Kagan’s view, oversimplifies matters. The audiencebased theory, with its concern for preventing distortion, should also dictate that facially contentneutral laws that skew speech markets should get the closest possible scrutiny as well, but they do
not.15 Furthermore, if First Amendment doctrine truly is based upon preventing the distortion of
the marketplace of ideas, then content-based laws that only have a mild tilting or skewing effect
on the marketplace should be less closely scrutinized, but, again, they are not. In fact, Ms. Kagan
continues, the audience-based theory would actually command, rather than merely tolerate,
content-based laws in some circumstances, because the disparate impact of a law on a set of ideas
might just as easily lead to balance as it leads to distortion. It is equally possible that some
content-neutral laws actually preserve a skewed speech market and should receive closer scrutiny.
Despite these seeming inconsistencies, the audience-based theory would argue that it is difficult
to measure skewing effects. Therefore, it is possible that the Court has drawn the line between
content-based and content-neutral laws to best prevent skewing, with an awareness that the fit is
not perfect. Ms. Kagan disagrees and argues that the audience-based model fails to explain the
content-based/content-neutral distinction made by the Court. For example, she notes that it “is not
incoherent (it may even be correct) to suggest that campaign finance restrictions improve the
speech market.”16 Some may disagree with that statement, she concedes, but it would be a
sensible and supportable claim. Therefore, according to Ms. Kagan, it is not always impossible to
reach a well-supported decision on the effects of regulation on an existing speech market. As a
result, the content-based/content-neutral distinction cannot arise from an inability to evaluate
skewing effects. Furthermore, even assuming this inability to evaluate skewing effects existed,
the inability still would be incapable of properly explaining the distinction between content-based
and content-neutral laws, because all government action has effects on the speech market. Both
content-based and content-neutral laws are capable of skewing the speech market, and we are
provided with no reason for their difference in treatment by the Court from the audience-based
theory.
Thus, Ms. Kagan is left with the government-motive-based theory, and she argues that it explains
the content-based/content-neutral distinction more clearly than the other theories. Courts, under
this theory, would disfavor content-based laws because they are disproportionately likely to be
linked to suspect government motives. “The goal of the doctrine, then, must be to identify a set of
improper motives, which themselves may give rise to untoward consequences—not to identify a
set of untoward consequences defined independent of improper motives.”17 Ms. Kagan argues
that the content-based/content-neutral distinction “separates out roughly but readily actions with
14

Id. at 445.
Kagan explains skewing speech markets by example. She returns to her billboard example. “Suppose, for example,
that only Democrats, and not Republicans, use billboards to advertise; then, the skewing effect of a general ban on
billboards would match the skewing effect of a law specifically barring Democrats from this forum.” Id. at 446.
16
Id. at 450.
17
Id. at 451.
15

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varying probabilities of arising from illicit motives.”18 She turns again to the billboard example.
In the law banning all billboards, she argues that because it applies to all ideas it is the law most
unlikely to be motivated by the suppression of disfavored ideas. Therefore, the presumption of
constitutionality for a law banning all billboards makes sense under the motive-based theory. On
the other hand, Ms. Kagan notes, improper purpose could more easily infect a law that bans
billboards based upon only one viewpoint, commanding, as doctrine does, higher scrutiny. She
also argues that it explains the more relaxed mid-level scrutiny given to subject-based restrictions,
because, like generally applicable restrictions, it applies to a range of ideas, thus reducing the risk
of improper motivation (though the risk is greater here than with a law that applies to all ideas
rather than only ideas related to a certain subject matter).
Ms. Kagan also argues that the government motive theory explains why doctrine ignores the
disparate skewing effects of some content-based and content-neutral laws. In her view, a law’s
“terms more reliably indicate illicit motive than its effect and thus [its terms] should [and do]
control the legal analysis.”19 Content-neutral laws, even when they have significant skewing
effects, affect a diffuse range of dimensions. This diffuseness “outweighs the severity of its
impact on any particular idea as evidence of motive.”20 On the other hand, content-based laws
have a very focused effect. Therefore, even where skewing is insignificant, it happens in such a
narrow area as to heighten suspicion of improper purpose.
The heightened scrutiny for content-based laws and lesser scrutiny for content-neutral laws
remains an imprecise tool, nonetheless. Ms. Kagan acknowledges that the distinctions will
produce some “wrong” results, but they are tolerated because the alternative (a direct inquiry into
motive) will produce even more frequent errors due to the government’s ability to assert
pretextual and seemingly legitimate motives. To mitigate potential imprecision the outcomes of
the analyses are presumptive only. She argues that the standard applied by the Court functions as
an evidentiary device to allow the government to disprove the presumption of improper motive
(under the strict scrutiny standard) arising from the content-based nature of a law. A law may be
upheld under the strict scrutiny standard if it applies to all speech that threatens the compelling
interest asserted and only to that speech. The less compelling the interest, the more suspicious the
Court may become. Furthermore, if the restriction would capture more speech than just the
speech threatening the asserted interest, the Court’s suspicions of improper motive may deepen as
well. Thus, the strict scrutiny standard may serve as an opportunity for the government to
“disprove (again, of necessity indirectly) the inference of bad motive that arises from the contentbased face of a law.”21
This presumption operates in reverse for content-neutral laws. Content-neutral laws do carry risk
of improper motive, in Ms. Kagan’s view, because they restrict speech, and it is possible that
lawmakers may be so averse to a particular idea that they are willing to suppress more speech
than necessary to restrict that idea’s expression. “At a certain point—when the asserted
[government] interest is insubstantial or when it does not fit the scope of the challenged
regulation—the usual presumption of proper purpose topples; there is reason, then, to think that
the law, though content neutral, has been tainted by impermissible purpose.”22
18

Id.
Private Speech, Public Purpose, supra note 1, 63 U. Chi. L. Rev. at 452.
20
Id.
21
Id. at 454.
22
Id. at 455.
19

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Supreme Court Nominee Elena Kagan: Selected Freedom of Speech Scholarship

Ms. Kagan closes this section by arguing that only the motive-based model can explain the
distinctions in the levels of review applicable to content-based and content-neutral laws. Since
this is such a fundamental aspect of First Amendment doctrine, it would seem, therefore, that her
theory fits best in explaining its development. She next goes on to argue that the government
motive theory explains exceptions to the general rules for content-based and content-neutral laws.

Suspect Content-Neutral Laws
Ms. Kagan observes that most content-neutral laws receive more relaxed scrutiny, but certain
content-neutral laws carry special risk and, therefore, receive closer scrutiny from courts.23 These
are laws that confer standardless discretion on agencies, laws that turn on the communicative
effect of speech, and laws that attempt to “equalize” the speech market. Ms. Kagan argues that
these types of laws, similar to content-based laws, are treated more strictly because they carry a
higher risk of improper government motivation for enacting the speech restriction.

Standardless Discretion
Ms. Kagan begins with an example. In Saia v. New York,24 the Court struck down a law that
prohibited persons from operating radio devices or loudspeakers in a way that the sounds they
made could be an annoyance or inconvenience to travelers on the street unless permission was
obtained from the chief of police.25 The Court has struck down laws granting similar discretion to
officials to determine when speech, though generally prohibited, is permissible. In none of the
cases did the Court wait for an administrator to make an improper decision; instead the Court’s
concern appeared to be the wide authority granted to administrators by the statute.
Again, the analysis begins by discarding the alternative effects-based theories as explanations for
the doctrine. The speaker-based model, concerned only with the quantity of speech opportunities,
cannot account for this rule against standardless licensing schemes, “because such schemes do not
necessarily curtail more speech than other, less constitutionally suspect modes of restricting
expression.”26 The speaker-based model thus provides no reason for why the Court would strike
down the statute in Saia but uphold the statute in Kovacs v. Cooper,27 which completely
prohibited the use of sound trucks, loud speakers, or amplifiers on public streets.”28 The amount
of speech restricted in the law at issue in Saia is arguably less than the law at issue in Kovacs, yet
the Kovacs statute is constitutional. The audience-based model, Ms. Kagan argues, fares no better.
It is still possible that content-based decisions could as easily improve the speech market as
impair it. If there is reason to presume distortion rather than improvement of the speech market,
Ms. Kagan believes that presumption must arise from concerns with illicit motives. 29
This leaves only the government motive theory to explain the higher standard applied to contentneutral laws that allow administrators to grant exceptions without setting standards for those
23

Id. at 456.
334 U.S. 558 (1948)
25
Id. at 558-59 n1.
26
Private Speech, Public Purpose, supra note 1, 63 U. Chi. L. Rev. at 458.
27
336 U.S. 77 (1949).
28
Private Speech, Public Purpose, supra note 1, 63 U. Chi. L. Rev. at 458.
29
Id. at 459.
24

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exceptions. In Ms. Kagan’s opinion, this is so because the laws that grant administrators or
agencies the power to grant exceptions without setting standards delegate to administrators (e.g.,
the chief of police in the Saia case) the power to make decisions about speech based upon
content.30 When there is no standard for administrators to follow, the Court cannot determine,
without a direct admission from the administrator, what the official based her decision on. The
decision could easily be based upon the content of the speech. Therefore, greater scrutiny for laws
like this prevents the legislators from granting to administrators the power to make decisions
regarding speech on the basis of criteria (i.e., content) that could involve impermissible motive.31

Communicative Effect
Laws that prohibit speech based upon its communicative effects are similarly closely scrutinized
by the Court. The most common example is a breach of peace statute. Ms. Kagan at first
acknowledges that her motive theory seems to be a poor fit because the avowed government
interest in preventing violence appears to be legitimate. But lawmakers may very well know what
ideas provoke hostility in their communities. Laws turning on communicative effect, in Ms.
Kagan’s estimation, allow content-based actions in application because they are dependent upon
enforcers of the law to act. Content-based government action raises fear of improper motive. And
they may do so for content-based reasons, just as in the case of laws granting standardless
discretion to administrators and laws that are facially content-based. “The key to the analysis ... is
first, the functional equivalence between statutes referring to content and statutes turning on
communicative impact and second, the relation between content discrimination and
impermissible motive.”32 The risk of content-based actions in application justifies the same
suspicion of improper motives as any other facially content-based laws.

Laws that Equalize the Speech Market
In Buckly v. Valeo, the Supreme Court declared “the concept that the government may restrict the
speech of some elements of our society in order to enhance the relative voice of others is wholly
foreign to the First Amendment.”33 As a result, the Court invalidated certain campaign finance
expenditure ceilings. 34 However, Ms. Kagan argues that this principle can apply more broadly.
For example, the Court could have been similarly motivated to strike down the statute at issue in
Miami Herald v. Tornillo,35 which required newspapers to publish replies to articles that attacked
political candidates.36 She also argues that the dissenting Justices in Turner Broadcasting Inc. v.
FCC37 were motivated by this principle when they voted to strike down cable “must-carry”
rules. 38 Both the “must-carry” laws and the right-of-reply statute would have required one set of
30

Id. at 459-461.
Id. at 460.
32
Id. at 463.
33
464, 424 U.S. 1, 48-49 (1976)
34
CRS Report RL30669, The Constitutionality of Campaign Finance Regulation: Buckley v. Valeo and Its Supreme
Court Progeny, by (name redacted).
35
418 U.S. 241 (1974)
36
Private Speech, Public Purpose, supra note 1, 63 U. Chi. L. Rev. at 464.
37
512 U.S. 622, 674-85 (1994) (O’Connor, J. concurring in part and dissenting in part).
31

38
The “must-carry” rules, at their most basic level, require cable operators to carry local broadcast stations free of
charge upon the request of the broadcast station entitled to carriage. See 47 U.S.C. § 534.

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speakers to provide a forum for another set of speakers in order, essentially, to even the speech
playing field. In Ms. Kagan’s assessment they, therefore, arguably violated Buckley’s
pronouncement against disadvantaging some speakers to favor others.39
Ms. Kagan observes, however, that the Court is less than wholly committed to the Buckley
principle. For example, she notes that within Buckley itself, the Court seemed to contradict this
principle by upholding spending limits on corporate independent expenditures, because the Court
found that these types of expenditures could distort or unfairly influence an election. 40 Ms. Kagan
indicates that she believed this finding to be inconsistent with the primary principle announced in
Buckley. Ms. Kagan does not indicate whether she agrees with the Court’s acceptance of the
justification offered by the Court. Ms. Kagan also does not go so far as to say that this portion of
Buckley was wrongly decided. It should be noted here that, in 2010, the Supreme Court
invalidated independent expenditure limits for corporations in Citizens United v. FEC.41 Given
the reasoning stated in this article, Ms. Kagan may find the holding in Citizens United to be
consistent with Buckley’s heightened suspicion of laws that seek to “equalize” the speech market.
However, such an observation does not necessarily indicate that Ms. Kagan would agree with the
holding in Citizens United invalidating the restrictions, though the reasoning of the opinion may
be more consonant with the theory announced in her article.
Another case in which the Court did not adhere to the principle announced in Buckley was Red
Lion Broadcasting v. FCC.42 In that case, the Court upheld the FCC’s fairness doctrine, which
required balanced treatment of issues of public importance and functioned in a similar way to the
right-of-reply statute that was struck down in Tornillo.43 Furthermore, Ms. Kagan points out that
the Court actually upheld the cable “must-carry” rules in Turner Broadcasting. The Court reached
this conclusion by refusing to view “must-carry” as a violation of the Buckley principle. 44 That is,
Ms. Kagan argues, the Court refused to see the “must-carry” rules as an attempt to achieve the
appropriate mix of ideas in the marketplace, and, instead, categorized the rules preserving access
to free over-the-air television regardless of the speech occurring on the medium. Ms. Kagan
asserts that what is important for the purposes of her analysis is that the Court understood the
rules in such a way as to obviate a conflict with Buckley.
In any event, Ms. Kagan definitively asserts that no Justice on the Court (in 1996) would dispute
the statement that “the government may not restrict the speech of some to enhance the speech of
others.”45 The real question for Ms. Kagan is not when or why the Court might deviate from that
statement, but why that statement is accepted by the Court as a truism at all.
When viewed through the prism of the audience-based theory of the First Amendment, in Ms.
Kagan’s estimation, it would seem that the exact opposite of Buckley’s mandate is required.46 If
39

Private Speech, Public Purpose, supra note 1, 63 U. Chi. L. Rev. at 464.
Id. at 465.
41
No. 08-205, slip op. (U.S. Jan. 21, 2010). See CRS Report R41045, The Constitutionality of Regulating Corporate
Expenditures: A Brief Analysis of the Supreme Court Ruling in Citizens United v. FEC, by (name redacted).
42
395 U.S. 367 (1969).
43
Private Speech, Public Purpose, supra note 1, 63 U. Chi. L. Rev. at 465. See CRS Report R40009, Fairness
Doctrine: History and Constitutional Issues, by (name redacted).
44
Private Speech, Public Purpose, supra note 1, 63 U. Chi. L. Rev. at 465 n145.
45
Id. at 466.
46
Id. at 466.
40

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the Court and the government should be primarily concerned with making sure that everything
that is worth being said is said, then the First Amendment probably should require a reallocation
of speech opportunities to disadvantaged speakers. That is not, however, the general rule, as
evidenced by cases like Buckley; therefore, Ms. Kagan argues that the audience-based model
cannot explain the Court’s heightened suspicion.
The speaker-based model does not explain the Buckley principle much better in Ms. Kagan’s
analysis.47 If the speaker-based model were, in fact, the Court’s motivation for its treatment of
“equalizing” laws, the Court would have asked whether the interest in promoting diversity
outweighed the loss of expressive opportunities caused by the expenditure limitations. Since the
Court does not ask that question, Ms. Kagan concludes the speaker-based model is a poor fit.
Having eliminated the other two theories of First Amendment doctrine, Ms. Kagan is left with the
motive-based theory. She admits that at first glance the motive-based theory may seem
incongruent with the Buckley principle because the motivation for enacting laws that equalize the
speech market appears to be the opposite of improper because they are not trying to silence
anyone. Instead, on their face, they appear to grant more speakers the opportunity to speak. Ms.
Kagan, again, argues that the presumption against the constitutionality of these types of laws
should be viewed as an evidentiary tool. She argues that “governmental actions justified as
redistributive devices often (thought not always) stem from hostility or sympathy for ideas or,
even more commonly, from self interest.”48 Laws of this type, Ms. Kagan argues, carry a greater
risk that government officials have taken into account improper factors, and courts have particular
difficulty detecting tainted deliberations, due to the seemingly legitimate interest in providing
speech opportunities to disadvantaged speakers.
The main issue, for Ms. Kagan’s purposes, is that laws equalizing the speech market exist
specifically to alter the mix of ideas, or at least alter the speakers associated with ideas, in the
market. Ms. Kagan argues that laws that seek to equalize speech opportunities, therefore, are
nearly as likely as content-based laws to stem from improper motives. For example, Ms. Kagan
notes that campaign finance laws could easily serve as incumbent protection devices, and posits
that suspicion of this type of motive could have been what prompted the Court to invalidate the
statute that prevented corporations from advocating particular positions on referenda in a case
called First National Bank of Boston v. Bellotti.49 Ms. Kagan also hypothesizes that the Court
may have struck down the statute in Tornillo for fear that the government was actually motivated
by a desire to allow incumbent politicians to have the last word in debates about their character.50
Under this theory, the dissenters in the “must-carry” case, Turner Broadcasting, may have been
similarly suspicious of improper motivation, because must-carry could have been to protect local
broadcasters because they more extensively cover local politicians than cable outlets. Ms. Kagan
also theorizes that it would be difficult, if not impossible, to detect such improper motives. But
Justice Scalia has hinted that it is a factor that he considers, saying “The incumbent politician
who says he welcomes full and fair debate is no more to be believed than the entrenched
monopolist who says he welcomes full and fair competition.”51 Therefore, Ms. Kagan concludes
47

Id.
Id. at 467.
49
Id. at 470 (citing First National Bank v. Belotti, 435 U.S. 765 (1978)).
50
Id. at 470.
48

51
Private Speech, Public Purpose, supra note 1, 63 U. Chi. L. Rev. at 471-72 (citing Austin v. Michigan Chamber of
Commerce, 494 U.WS. 652, 692 (Scalia, J. dissenting).

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that the government motive theory plausibly explains the heightened scrutiny the Court applies to
laws that seek to equalize the speech market.

Safe Content-Based Laws
If some content-neutral laws require more heightened scrutiny than the Court would normally
accord because they present greater risk of improper motive, then it would make sense that
content-based laws that presented slight risk of improper government motivation would qualify
for a lesser degree of First Amendment review. Ms. Kagan argues that this is, in fact, the case for
restrictions on low-value speech, like obscenity and fighting words, and laws directed at the
“secondary effects” of certain types of content.

Low-Value Speech
Some categories of speech can be restricted with either greatly reduced scrutiny from the Court or
no scrutiny at all. Obscenity, child pornography, and fighting words have been declared to be
unprotected speech and can be banned entirely. Commercial speech restrictions receive a lesser
degree of scrutiny than restrictions on all other types of speech. Furthermore, libel is subject to a
“bewildering” array of restrictions.52 Ms. Kagan asks why it is okay to restrict this type of content
without fear of the highest constitutional scrutiny. One possible reason is that it is not political
speech, which the Court has often identified as the category of protected speech at the heart of the
First Amendment. Ms. Kagan discards this possibility because, in her analysis, the instances when
the Court has declared an elevated status for political speech gave only added support to decisions
that would have had the same result without those statements.
She proceeds to attempt to apply the three theories of the First Amendment to the Court’s formal
delineation of low-value speech and informal elevation of political expression. She concludes that
this doctrine cannot be explained by the speaker-based model, but can be explained by the
audience-based theory rather well.
She discards the speaker-based approach because it could explain low-value categories “only if
speech of the disfavored kinds confers less value on a speaker than does speech receiving full
protection.”53 Low-value speech must promote values a speaker gains by communicating less
well than other forms of speech, somehow. Ms. Kagan acknowledges uneasiness with this
rationale, because it is not clear “what kind of speech does the greatest good for speakers, or best
promotes their interests.”54 Arguments can and have been made for the benefits some low-value
speech can confer on speakers. Under this model, Ms. Kagan believes “the most appropriate
course would place in the speaker’s own hands the question what kind of speech has value to her,
by freeing her to choose among expressive activities.” This seems to run counter to the Court’s
decisions to create categories of speech with a lower value under the First Amendment.
The audience-based approach explains the creation of low-value categories of speech better,
because if the goal is to provide a range of opinion and information that serves the audience in its
52
Private Speech, Public Purpose, supra note 1, 63 U. Chi. L. Rev. at 472. CRS Report R41281, Supreme Court
Nominee Elena Kagan: Defamation and the First Amendment, by (name redacted).
53
Id. at 475.
54
Id. at 476.

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search for the truth, it makes sense to place little value on speech that does not aid the audience in
searching for that truth. Under this theory, commercial speech could qualify for lower scrutiny
because it carries special risk of being deceptive and deception cannot serve the audience interest
in the truth. Obscenity and fighting words restrictions might qualify for reduced review, because
obscenity and fighting words are not reasoned and cannot, therefore, aid reasoned discourse. This,
in Ms. Kagan’s view, seems to indicate that the audience-based model might fit with the creation
of low-value categories of speech. However, she notes that false speech (that is not commercial
speech and is not defamatory) remains protected by the Constitution, and no one could argue that
speech that is false aids audiences in reaching the truth. Therefore, perhaps the audience-based
model is not a perfect explanation for low-value categories.
If the government-motive-based theory is to fit with the creation of low-value categories of
speech then, Ms. Kagan finds, it must be because there is something about restricting these types
of content that carries less risk of improper motivation on the part of the government. Ms. Kagan,
therefore, analyzes each disfavored category to determine whether a lack of risk of illicit motive
may be the reason these categories of speech are more easily restricted.
In Ms. Kagan’s view, the government motive theory could explain the different levels of review
for defamation depending on the subject matter of the speech at issue. Defamation is more likely
to be exempt from punishment due to First Amendment concerns if the subject of the alleged
defamatory statements is a public figure or the speaker was addressing issues of public
importance. Speech about these subjects and individuals, in Ms. Kagan’s theory, is more likely to
implicate the views and interest of decision-makers. Thus, their restriction carries more risk of
improper government motivation, because silencing them would be more likely to be in
lawmakers’ self-interest. On the other hand, speech about private individuals and private affairs is
less likely to implicate improper motives and can therefore be more easily restricted.
Ms. Kagan also finds logic in applying the government motive theory to the treatment of
commercial speech. She reasons that there is less risk of improper motivation for restrictions of
commercial speech because the government already regulates commercial activity very closely.
Therefore, it is possible that the Court has decided to presume legitimacy in regulations of speech
proposing commercial activity, qualifying those restrictions for a lower standard of scrutiny. This
seems logical to Ms. Kagan because speech proposing a commercial transaction is itself very
close to a commercial activity. Therefore, the Court lowers the burden placed on the government
to justify restrictions of commercial speech to an intermediate level of scrutiny, and allows the
government to freely restrict false and misleading commercial speech.
Ms. Kagan then shifts her analysis to the unprotected categories of speech. She acknowledges that
the delineation of these categories of speech as lacking protection of the First Amendment does
not square easily with the government motive theory. She finds justification for the lack of
protection for fighting words by arguing that the Court may be approving of the government’s
response to an immediate danger of violence. Because the government would likely respond
regardless of the ideas expressed, the Court may have a reduced fear that an impermissible motive
underlies the speech restrictions.
Obscenity restrictions are a more difficult fit, however. Ms. Kagan goes so far as to say that it is a
poor fit. She acknowledges that government motive does not appear to be the key concern for the
Court in reviewing obscenity restrictions. The Court’s key concern is obscenity’s effect on its
audience. In fact, part of the test for whether speech is obscene mandates an inquiry into the
standards of the community. “And even if the formal test did not include these attributes, the

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Supreme Court Nominee Elena Kagan: Selected Freedom of Speech Scholarship

probability of taint infecting an obscenity law seems severe,” particularly the improper motive of
maintaining the status quo on sexual mores.55 “In this area,” Ms. Kagan admits, “a motive-based
model thus fails to explain the doctrine.”56
Unless, Ms. Kagan hypothesized, calling these categories of speech “low value” categories is
actually a misnomer. Perhaps, the restrictions placed upon these categories carry a “low risk” of
improper government motive. When viewed through the prism of “low risk” restrictions (as
opposed to restrictions on “low value” speech), Ms. Kagan argues that the lesser degree of
protection for these categories makes more sense. 57 Ms. Kagan observes that when faced with
restrictions that present a greater risk of improper motivation, even within these “low value”
categories, the Court may heighten its standard of review. For example, in R.A.V., the Court
invalidated a statute that discriminated against fighting words based upon viewpoint. In Ms.
Kagan’s view, the invalidation of this statute could only make sense if the Court were primarily
concerned with illicit government motives. Furthermore, in Cincinnati v. Discovery Network,58
the Court invalidated a statute that prohibited newsracks carrying commercial publications, but
not newsracks carrying news publications. In invalidating the statute, the Court stated that the
distinction made between commercial and noncommercial speech “bears no relationship
whatsoever to the particular interests that the city has asserted.”59 Ms. Kagan argues that the
Court could have reached this conclusion because the lack of relationship between the
commercial content and the regulation at issue created a heightened suspicion of improper
government motive. In other words, the decisions in Discovery Network and R.A.V. arose from “a
judgment of risk, rather than a judgment of value.”60 In this way, Ms. Kagan argues that “lowvalue categories fall into line with the rest of First Amendment law; they become another way of
focusing and refining the search for motive.”61

Secondary Effects
The secondary effects doctrine has been used by the Court to uphold laws that restrict speech
based upon content that are directed at preventing or mitigating the so-called “secondary effects”
of that type of content. The secondary effects doctrine holds, essentially, that “facially contentbased restrictions on speech that are justified without reference to the content of the regulated
speech” should be treated as if they made no facial distinctions on the basis of content. 62 It is the
only aspect of First Amendment doctrine that directly focuses on the nature of government
motive, and, in doing so, seems to conflict with Ms. Kagan’s theory that First Amendment
doctrine, overall, indirectly seeks to flush out impermissible motives. Ms. Kagan acknowledges
that her theory may be ill-equipped to explain the Court’s motivations in devising and applying
the secondary effects doctrine, but she also argues that the secondary effects doctrine does not
comport with the speaker- or audience-based theories either.

55

Id. at 480.
Id. at 481.
57
Id. at 481
58
507 U.S. 410 (1993).
59
Id. at 424.
60
Private Speech, Public Purpose, supra note 1, 63 U. Chi. L. Rev. at 483..
61
Id.
62
Id.
56

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She demonstrates through example. Ms. Kagan posits a law that restricts sexually explicit speech
to preserve neighborhood character and another law that restricts the same speech in order to curb
sexual libertinism. Both laws curtail exactly the same amount of speech in her example, and
under both the speaker-based and audience-based models (which are focused upon the effects of
regulations on the speech market) the differences between these regulations should have no
constitutional significance. Yet, under the secondary effects doctrine, the former proposed law is
likely constitutional where the latter is not. Therefore, the speaker-based and audience-based
models cannot explain the secondary effects doctrine, according to Ms. Kagan.
However, as noted above, the secondary effects doctrine also fits uneasily with the government
motive theory. Ms. Kagan’s theory is that the courts have developed objective tests that serve
indirectly to flush out laws bearing the highest risk of improper government motive, and states
specifically that direct inquiry into such motives is ineffective. The secondary effects doctrine,
however, directly inquires into motive, seemingly, Ms. Kagan admits, contradicting her theory.
Ms. Kagan attempts to reconcile the secondary effects doctrine with her government motive
theory nonetheless. She observes that the distinction at the heart of the secondary effects doctrine
is the distinction between communicative (primary) effects and noncommunicative (secondary)
effects. Under the secondary effects doctrine, laws that seek to mitigate noncommunicative
effects receive less scrutiny from the Court, but laws that focus on primary effects remain
unlikely to be upheld as constitutional. According to Ms. Kagan, “the difference lies in whether
the harm the government is seeking to prevent arises from the expressive aspects of the speech,
or, stated in another way, whether the harm results from a listener’s hearing the content of speech
and reacting to it.”63 Therefore, the Court’s justification for a more relaxed standard for laws
targeting secondary effects is that the target of the regulation merely happens to be associated
with a particular kind of content, instead of the particular kind of content being the target of the
regulation.
The question becomes, then, why this distinction is important. One possible theory is that it is
important because it marks the divide between presumptively permissible and presumptively
impermissible restrictions.64 Ms. Kagan does not believe this to be the case, however, because this
explanation fails to address the fact that the secondary effects doctrine hinders rather than aids the
effort to uncover improper government purpose. This criticism assumes that Ms. Kagan’s theory
that First Amendment doctrine actually is an elaborate attempt to flush out improper motive
indirectly is correct.
Regardless, in Ms. Kagan’s opinion, a better explanation for the importance of the distinction
between laws that address expressive effects of speech and laws that address nonexpressive
effects is that communicative impact plays a “quasi-evidentiary” role, which signals a change in
the standard of review to be used. If one assumes that improper motive is easier to detect “when
the justification for a statute relates to noncommunicative, rather than communicative impact,”
then a relaxed standard would be sufficient to separate proper and improper motives. 65 For Ms.
Kagan, the “key point is that because the harm in secondary effects cases derives from a thing
only contingently related to expression, courts and legislators in theses cases possess, to a greater

63

Id. at 486.
Id. at 487.
65
Private Speech, Public Purpose, supra note 1, 63 U. Chi. L. Rev. at 487.
64

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degree than usual, two testing devices for stripping away pretexts and revealing motives.”66 First,
the court may ask whether the government has tried to regulate speech in the absence of the
asserted harm. Second, courts can check for improper motive by asking whether the government
regulates conduct that causes the same harm as the expression affected. Since the court can apply
these tests to reveal improper motive, the court arguably does not need to apply the more
stringent standard of review in secondary effects cases.
Ms. Kagan acknowledges, nonetheless, that there is still an uneasy fit between the secondary
effects doctrine and the government motive theory, and she goes so far as to suggest that the
secondary effects doctrine may be in error, if not, at least, an aberration. The government motive
theory and secondary effects doctrine create a problematic paradox for Ms. Kagan in which the
doctrine most concerned with evaluating government motive is the doctrine least reconcilable
with her motive-based model. Furthermore, she claims that the secondary effects doctrine may be
in error because the decision to evaluate reasons for restrictions by asking about them is
ineffective. In her argument, all other areas of First Amendment doctrine have exhibited that the
most effective avenue towards discovering the risk of improper motive is to pose questions
having little or nothing to do with motive (e.g., asking whether the law is content-based or
content-neutral). The only way that Ms. Kagan can devise to bring her government motive theory
into line with the secondary effects doctrine is to view it as an evidentiary tool in the manner she
describes, but, even then, Ms. Kagan refrains from “[staking] very much on the strength of this
motive-based explanation.”67

The Distinction Between Direct and Incidental Restrictions on Speech
Courts have long reviewed laws that directly restrict speech more closely than those that merely
“incidentally” restrict speech.68 Ms. Kagan observes that, without this distinction, nearly every
law would implicate the First Amendment because every law may have at lease some effect on
expression and expressive opportunities. The questions, therefore, become where, how, and why
to draw the line.
According to Ms. Kagan, the distinction that governs here is the distinction between government
actions targeting expression alone and government actions applying generally to both expressive
activities and nonexpressive activities. The more generally applicable a law is, the more it targets
an action irrespective of its potential for expression, and the more likely the Court is to weaken, if
not eliminate, its First Amendment review. In other words, if a law would have applied to an act
of expression regardless of the fact that the act was expressive, it is more likely to be treated as an
incidental restriction on speech, and presumptively constitutional.
Ms. Kagan posits that incidental restrictions on speech are treated with less suspicion because
they create less risk of improper government motivation. She reasons, by example, that the
speaker-based model does not explain the Court’s treatment of incidental restrictions. She
hypothesizes laws that restrict speech directly to a generally applicable regulation (e.g., a law
making it illegal to deface synagogues with swastikas versus a law that bans vandalism in
general). “If what mattered were the effect of a regulation on a speaker’s expressive
66

Id. at 488.
Id. at 490.
68
Id. at 491.
67

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opportunities, then the court would review these municipal acts in identical fashion.”69 However,
they do not. She reasons similarly for the audience-based model. She notes that if all laws have
the potential to distort the speech market, then, under this theory, they should all be reviewed
under the First Amendment, but they are not.
In Ms. Kagan’s estimation, the government motive theory better explains the Court’s treatment of
incidental restrictions, because there is less fear of improper motivation underlying these laws.
For example, generally applicable laws (e.g., taxes that apply to all corporations) aren’t targeted
at ideas, normally; therefore, there is little if any First Amendment scrutiny applied. However,
there are two categories of generally applicable laws that the Supreme Court has identified as
requiring heightened scrutiny, and, Ms. Kagan argues, this is because the categories carry
elevated risk of improper motivation.
Courts more closely scrutinize generally applicable laws that “have the inevitable effect of
singling out those engaged in expressive activity” (e.g., a tax on newsprint) and “laws that
sanction conduct that has a significant expressive element” (e.g., burning a flag, or destroying a
draft card).70 Ms. Kagan argues that these laws qualify for heightened scrutiny because laws of
this type are more likely to be motivated by bias. She uses as an example laws that would prohibit
flag burning. Flag burning can be prohibited without prohibiting “flag burning” per se. It can be
prohibited by a law that bans public fires, for example, and that law would likely be treated as an
incidental restriction on speech. In contrast, the government could attempt to regulate flag
burning directly, but only ban such action accomplished as a protest of the government. This
example is more likely to be treated as a direct restriction on speech, and, therefore,
unconstitutional, because it is also content-based, carrying a higher suspicion of improper motive.
Ms. Kagan then inquires into the treatment of a law that prohibits the knowing mutilation of the
American flag. This hypothetical statute poses a closer question because it falls closer to the line
between incidental and direct restrictions. However, Ms. Kagan notes that, in her view, the only
rational interests underlying a law prohibiting the knowing mutilation of the flag would relate to
suppressing a message, and therefore would relate to illicit government motive. Thus, Ms. Kagan
believes that the Court was correct to strike down just such a law in Texas v. Johnson, a case she
believes to be consonant with her government motive theory. 71
The last incidental restrictions Ms. Kagan addresses are hate crimes laws. She observes that hate
crimes laws are incidental restrictions on speech because, like labor laws preventing race-based
firings, whatever speech is involved in the crime is incidental to the ultimately illegal activity.72
She argues that “the generality of the law provides a qualified assurance that disapproval of ideas
qua ideas played no causal role in the legislative process.”73
Some argue that hate crimes laws amount to proscribing a certain kind of expression and that the
law is not generally applicable because it only applies to a subset of ideas. Ms. Kagan argues that
this criticism is incorrect because hate crimes laws ban conduct that may occur independent of
expression, which means the punishable offense itself remains a generally applicable law (the
69

Id. at 494.
Private Speech, Public Purpose, supra note 1, 63 U. Chi. L. Rev. at 497-98.
71
Id. at 502. CRS Report R41256, The Jurisprudence of Justice John Paul Stevens: Leading Opinions on the Free
Speech Clause of the First Amendment, by (name redacted).
72
Private Speech, Public Purpose, supra note 1, 63 U. Chi. L. Rev. at 502-03.
73
Id. 503.
70

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hate crimes portion is generally a sentence enhancement for the prohibited conduct). Others
similarly claim that hate crimes laws bar racist ideas, but not others, and should therefore be more
closely reviewed. Ms. Kagan responds that many generally applicable laws affect speech in
asymmetrical ways, but are not so stringently reviewed. The last and most effective argument, in
Ms. Kagan’s view, for increased scrutiny of hate crimes law is that the only rational justification
for a hate crime law relates to the message the proscribed activity conveys. Ms. Kagan posits that
the government interest may not be in eradicating the message at all. Rather, the government may
actually be attempting to eradicate racial disadvantage (not unlike the prohibition on race-based
employment discharge) by preventing disproportionate harm from falling on members of a racial
group.74
In total, Ms. Kagan finds that the “doctrine acts as a complex mechanism to provide review where
necessary and of the kind necessary to invalidate improperly motivated government actions.”75

The Underpinnings of Motive Analysis
Assuming that there is a focus on government motive, Ms. Kagan now asks why it might be so.
She begins her analysis by first looking to the general justifications usually offered for rules of
process. To begin, she offers that perhaps a rule of process is adopted to promote good
consequences. On the other hand, perhaps a rule is adopted for its own sake, “because it possesses
certain attributes or expresses certain norms, the correctness of which renders any outcome it
produces correct.”76 The important distinction is between rules whose justification derives from
the results and rules whose internal attributes justify them independently of results.
Ms. Kagan concludes that the motive-based theory may be justified because it produces “good
results.” It is true, in her theory, that a rule foreclosing on improperly motivated restrictions
would promote a set of outcomes that would benefit the audience. It may be fair to say also that
“any actions deriving from improper motives also become improper.”77 However, if what the
Court is concerned about is actually the effects a law would have on the speech market, then it
would seem that the Court should adhere more completely to the audience-based theory. That is,
unless the audience-based theory is not judicially manageable, which Kagan argues could be the
case. Assuming that the motive-based inquiry does arise from a concern with untoward effects,
Kagan suggests the reasons for the development may have proceeded as follows:
Why do we wish to discover improper motive? Perhaps because we wish to discover adverse
effects, but cannot do so directly; because we know that actions tainted with certain motives
tend to have such consequences; because although a focus on motive will prove imprecise,
we can think of no better way to gauge the effects of an action on the state of public
discourse.78

The other possible justification for a reliance on the motive-based theory would ask “why
motives, for their own sake and irrespective of material consequence, should determine the

74

Id. at 504.
Id. at 505.
76
Id. at 506.
77
Private Speech, Public Purpose, supra note 1, 63 U. Chi. L. Rev. at 507.
78
Id. at 509.
75

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legitimacy of governmental action.”79 Ms. Kagan notes that doctrine often treats laws that may
have exactly the same practical effect differently, and argues that this may be so because actions
derive meaning through what motivates the actions. Under this justification, “the government
may not treat differently two ideas causing identical harms on the ground that – thereby
conveying the view that – one is less worthy, less valuable, less entitled to a hearing than the
other.” Ms. Kagan wonders, however, why it is improper for the government to restrict
objectively contemptible ideas, independent of the harm they might cause. The best answer to this
question, for Kagan, appears to be “the probability that the government will err, as a result of selfinterest or bias, in separating the true and noble ideas from the false, abhorrent ones.”80 If this is
true, “a scheme of neutrality [would provide] the surer means” to prevent such error.81
Ms. Kagan lastly makes clear that the question she has been addressing is why government
motive might be important. She does not argue that government motive is all-important or that the
effects-based models are irrelevant. Ms. Kagan writes that she has “posited only that our system
of free expression focuses on motive.”82

“Regulation of Hate Speech and Pornography After
R.A.V.”
Three years prior to publishing her article described above, Ms. Kagan wrote a piece in the
University of Chicago Law Review on the implications of the Court’s decision in R.A.V.83 Some
of the same themes as in the article above are evident, though possibly in their earlier stages of
development, but her focus was different in writing this article as well. Here, she focused
primarily on the design of laws that would restrict hate speech and pornography, with an eye
towards designing restrictions that, in her view, would be more likely to be upheld by the
Supreme Court. Like the article above, she does not appear to suggest changes in doctrine
(though she does make one statement about her opinion on the correctness of a particular
decision). Instead, she appears to take the position that assuming her understanding of the Court’s
doctrine is correct, statutes may be designed to comport with that doctrine and restrict some hate
speech and pornography, though certainly not all.

The Presumption Against Viewpoint Discrimination
Ms. Kagan begins her article by noting that if hate speech and pornography regulations fail
constitutional scrutiny it is usually because they discriminate on the basis of a particular
viewpoint. Laws that discriminate based upon viewpoint are particularly constitutionally suspect.

79

Id.
Id. at 512.
81
Id.
82
Id. at 514.
83
Elena Kagan, Regulation of Hate Speech and Pornography After R.A.V., 60 U. Chi. L. Rev. 873 (1993).
80

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To illustrate that point, Ms. Kagan discusses two cases: R.A.V. v. City of St. Paul84 (hate speech),
and American Booksellers Ass’n, Inc. v. Hudnut85 (pornography).
As noted previously, in R.A.V., the Court struck down a law that prohibited only those fighting
words based on race, color, creed, religion, or gender. 86 Fighting words are unprotected
expression.87 It therefore seemed anomalous to many that a law that banned a particular subset of
unprotected expression would be unconstitutional. However, “in the Court’s view, the ordinance
in practice discriminated between different viewpoints: it effectively prohibited racist and sexist
fighting words while allowing all others.”88 This was unacceptable, because “[the] government
may not regulate speech based on hostility – or favoritism – towards the underlying message
expressed.” This deep aversion to laws that discriminate based upon viewpoint, therefore,
justified the Court’s decision to strike down a law that discriminated against viewpoints even in
communication that is traditionally unprotected.
A similar motivation, in Ms. Kagan’s opinion, underlies the Seventh Circuit’s decision (affirmed
summarily by the Supreme Court) in American Booksellers Ass’n, Inc. v. Hudnut,89 striking down
a law that banned pornography that depicted women as sexually subservient. The problem with
the ordinance, Kagan observes, is that it creates an “approved viewpoint” for women in the
context of sexual conduct: speech where women are portrayed as sexually equal is approved
speech; while speech where women are portrayed as sexually subservient is not.90 Invalidation,
Kagan argues, necessarily followed this conclusion.
Ms. Kagan further explains that these decisions, in her opinion, are deeply rooted in First
Amendment doctrine. To be sure, she acknowledges some cases might contradict the holdings of
R.A.V. and Hudnut, but, by and large, they fit within the overall doctrine and underscore the
importance of viewpoint neutrality when legislators construct speech restrictions. “Any attempt to
regulate pornography or hate speech—or at least any attempt standing a chance of success—must
take into account these facts (the ‘is,’ regardless whether the ‘ought’) of First Amendment
doctrine.”91 Therefore, if one were to practically approach crafting a hate speech or pornography
restriction, one should likely take pains to avoid a law that discriminated against viewpoints on its
face.
Ms. Kagan further states that she believes this approach to be the most harmonious with free
speech principles. In other words, she appears to support the strong presumption against laws that
discriminate against viewpoint and to support laws that are viewpoint neutral. She states “the
principle of viewpoint neutrality, which now stands as the primary barrier to certain modes of
regulating pornography and hate speech, has at its core much good sense and reason.... [My] view

84

505 U.S. 377 (1992).
771 F.2d 323 (7th Cir. 1985), aff’d mem, 475 U.S. 1001 (1986).
86 86
505 U.S. at 396.
87
Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).
88
Regulation of Hate Speech and Pornography After R.A.V., supra note 77, 60 U. Chi. L. Rev. at 874.
89
771 F.2d 323 (7th Cir. 1985), aff’d mem, 475 U.S. 1001 (1986).
90
Id. at 875.
91
Id. at 877.
85

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is that efforts to regulate pornography and hate speech not only will fail, but also should fail to
the extent that they trivialize or subvert this principle.”92
Nonetheless, Ms. Kagan addresses two main avenues of critique of the rule against viewpoint
discrimination preventing regulation of hate speech and pornography. The first critique would
claim that hate speech and pornography laws actually comport with the prohibition on viewpoint
discrimination because they are harm-based rather than viewpoint-based. Kagan argues that this
critique fails because there is no practical distinction between laws that regulate based upon the
harm a viewpoint causes and laws that discriminate against the idea behind the viewpoint. For
example, Kagan contrasts a law that punishes “abortion advocacy and counseling with an
ordinance punishing any speech that might induce a woman to get an abortion. To sever these
pairs of statutes would be to transform the First Amendment into a formal rule of legislative
drafting.”93 The facially harm-based statute and the facially viewpoint-based statute actually
function in the same way. Therefore, to say that hate speech and pornography restrictions are
harm-based in application is not as meaningful a distinction as its proponents would like, in
Kagan’s view.
The second, and more difficult, critique attacks the presumption against viewpoint discrimination
wholesale. It would hold that the “viewpoint discrimination doctrine is both incoherent and
corrupt.”94 The critique rests, in part, on the argument that recognizing when viewpoints are
discriminated against may well depend on who is determining that viewpoint discrimination is
present. The real danger, therefore, is that those with the power to identify laws that discriminate
based upon viewpoint (lawmakers and/or courts) may fall victim to their own worldview. That is,
a judge may be more likely to uphold a law that discriminates against a viewpoint that the judge
also personally disapproves (whether consciously or not). This could lead to a skewing towards
approval of laws that would uphold more traditional views.
Kagan argues that, even assuming that this is true, doing away with the viewpoint discrimination
principle is not the solution. Historic examples of viewpoint discrimination abound. And, Kagan
points out, they are not a concern of the past.
And if all these seem remote either from current threats or from the kind of viewpoint
discrimination in R.A.V. and Hudnut ... consider instead the case of Rust v. Sullivan95....
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.96

The dangers of viewpoint discrimination are very much alive in Kagan’s opinion.
Kagan further posits that the critique of a viewpoint neutrality principle serves to illuminate the
necessity of that principle. Government actors tend to see speech regulations through the prism of
their own worldviews. The viewpoint neutrality principle is in place to safeguard against the
92

Id. at 878.
Id. at 879.
94
Regulation of Hate Speech and Pornography After R.A.V., supra note 77, 60 U. Chi. L. Rev. at 880.
95
500 U.S. 173 (1991).
96
Regulation of Hate Speech and Pornography After R.A.V., supra note 77, 60 U. Chi. L. Rev. at 882.
93

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“imposition of an official orthodoxy.”97 In Kagan’s opinion, the groups with the most to lose from
the imposition of official orthodoxy are minority groups and women; therefore, removal of one of
the safeguards against its imposition seems antithetical to the goals of those groups, though it may
permit the enactment of some laws that those groups favor.
Kagan allows for the possibility of exceptions to the general rule for hate speech and
pornography, and her theories on how they might be crafted will be discussed later. First,
however, Kagan posits laws that could restrict hate speech and pornography that would comport
with the presumption against viewpoint discrimination.

New Approaches
Kagan identifies four new approaches for regulating hate speech and pornography. They are the
enactment of new or stricter bans upon conduct; the enactment of viewpoint-neutral speech
restrictions; the enhanced use of obscenity; and the creation of carefully crafted and limited
exceptions to the rule against viewpoint discrimination.98 Kagan does not argue that these will
certainly work, nor does she argue that these are the only paths. She offers them as well-reasoned
suggestions.

Conduct
Kagan begins by making clear that she is not attempting to conflate speech and conduct. She
observes that some scholars attempt to blur that line by arguing that speech is conduct because
speech has consequences. She dispenses with this argument because she believes that it carries
the danger of making First Amendment doctrine incoherent. When Kagan uses the word conduct,
she means “acts that, in purpose and function, are not primarily expressive.”99 Therefore, this
section focuses on the continued enactment and use of hate crimes laws and increasing legal
sanctions for some of the illegal acts that are committed in the course of creating pornography.
Kagan argues that hate crimes laws are targeted at conduct, not speech, “because they apply
regardless whether the discriminatory conduct at issue expresses, or is meant to express, any sort
of message.” It is comparable, therefore, to government prohibitions on firing an employee
because of his race, or any other law prohibiting discrimination. “A penalty enhancement [for a
crime committed based solely upon the victim’s race] constitutionally may follow because it is
pegged to an act—a racially based form of disadvantage—that the state wishes to prevent, and
has an interest in preventing, irrespective of any expressive component.”100 Kagan further
believes that tort-based and civil remedies could stem from this reasoning that “acts are not
shielded from regulation merely because they express a discriminatory idea or philosophy.”101
She argues that communities should consider creating civil violations committed on the basis of
race or sex.
97

Id. To support this statement, Kagan cites Justice Stevens, who noted, in Kagan’s characterization, “that doctrine
responds, preeminently, to fear of the ‘imposition of an official orthodoxy,’ or (perhaps even especially as to matters
involving sex or race.” The Hon. John Paul Stevens, The Freedom of Speech, 102 Yale L J 1293, 1304 (1993).
98
Regulation of Hate Speech and Pornography After R.A.V., supra note 77, 60 U. Chi. L. Rev. at 883.
99
Id.
100
Id. at 885.
101
Id. at 886 (citing R.A.V. 505 U.S. at 389-90).

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Turning to the regulation of pornography, Kagan notes that many activities that may be engaged
in when creating pornography are already criminal. For example, states, without having to enact a
single new statute, could more aggressively prosecute the abuse and assault often endured by or
inflicted upon women in the making of pornography. States could also make the use of fraud or
other forms of illegal deception specifically illegal to induce a woman to perform in a film,
regardless of the viewpoint expressed in the film eventually produced. Again, she argues for the
creation of additional tort remedies on these bases as well.
Kagan further argues that laws against prostitution and pandering could be used to curb
pornography. She noted a case in which a conviction for prostitution and pandering was upheld
against a woman who presented a sex show. “The [Arizona state court] reasoned, consistent with
established First Amendment doctrine, that the prosecutions were permissible because even if the
show had expressive content, the state had acted under statutes directed at conduct in order to
further interests unrelated to the suppression of expression.”102 Kagan argues that this statement
could be extended to the creation of depictions and used to prosecute pornographers that would
meet the standard for pandering. She concedes, however, that this approach, particularly if
applied broadly, may face significant constitutional problems.
Kagan also acknowledges that these approaches likely would not apply as broadly as those
opposed to pornography and hate speech would like. They certainly would not go so far as to
eliminate these types of speech from common discourse. However, Kagan’s argument is merely
that they would likely be upheld as constitutional.

Viewpoint-Neutral Restrictions
Kagan’s next suggestion is to craft laws that, though content-based, have no viewpoint bias. The
Supreme Court disfavors content-based restrictions, but has upheld such restrictions on occasion
nonetheless. One possibly effective course would be to use generally applicable laws banning
harassment, threats, or intimidation. The Court in R.A.V. had offered such a possibility as well.103
Kagan further suggests that laws prohibiting sexual violence might be used to curb pornography.
Some might argue that “sexual violence” serves as a code word for disfavored viewpoint. Kagan
disagrees because some works that are non-violent may portray women in subservient positions
and those works would remain permissible. Conversely, some violent works may portray women
in dominant positions, and those works would be prohibited. Kagan concedes that a restriction on
sexually violent speech still may present constitutional problems, but argues, nonetheless, that it
is worth consideration.
Lastly, Kagan argues, that “the Constitution may well permit direct regulation of speech, if
phrased in a viewpoint-neutral manner, when the regulation responds to a non-speech related
interest in controlling conduct involved in the material’s manufacture.”104 The distinction she
makes here is based upon New York v. Ferber,105 which held that the government could
criminalize child pornography because the government’s interest was in preventing the child
abuse inherent in the creation of the speech.106 She argues, therefore, that it would be logically
102

Id. 887-88.
505 U.S. at 395-369.
104
Regulation of Hate Speech and Pornography After R.A.V., supra note 77, 60 U. Chi. L. Rev. at 891.
105
458 U.S. 747 (1982).
106
A similar argument was advanced by the United States and rejected by the Supreme Court in United States v.
(continued...)
103

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consistent if “the government may prohibit directly the dissemination of any material whose
manufacture involved coercion of, or violence against, participants.”107 Kagan admits, however,
that this theory will have its limits and, if constitutional, likely would not capture all speech that
those opposed to pornography find offensive.

Obscenity
Ms. Kagan begins this section by noting that it is difficult in practice to distinguish between the
pornographic and the obscene. Much scholarship argues for distinctions between the two, and
Kagan admits that she does not believe the distinctions argued for are wrong. Kagan nonetheless
relates her experiences with teaching the constitutional standards related to obscenity and
pornography. Her classes often, if not conflated the two, at least identified them as related
concepts to be treated similarly. Kagan hypothesizes that this shift from viewing obscenity and
pornography as distinct to an inability to think of one without the other might have arisen from
the success of the anti-pornography movement, which, in her view, transformed “obscenity into a
category of speech understood as intimately related, in part if not in whole, to harms against
women.”108 Regardless of this potential shift in the conception of obscenity, the judicial treatment
of such speech has not shifted. Consequently, it could be argued that the public shift in viewpoint
will matter little from the perspective of what speech may be constitutionally restricted. Kagan
argues that attempts to restrict obscenity would prove successful constitutionally nonetheless.
“The key point here is that regulation of obscenity may accomplish some, although not all, of the
goals of the anti-pornography movement; and partly because of the long established nature of the
category, such regulation may give rise to fewer concerns of compromising First Amendment
principles.”109

Exceptions to Viewpoint Neutrality
The Supreme Court seems to have foreclosed the possibility of carving out exceptions from the
general rule of viewpoint neutrality for hate speech and pornography in R.A.V. and Hudnut.
(...continued)
Stevens, No. 08-769, slip op. (Apr. 20, 2010), 559 U.S. ____ (2010). The government had argued that depictions of
animal cruelty, such as those described in Sec. 48, fall outside the bounds of First Amendment protection, and therefore
may be restricted or criminalized without regard for the First Amendment. Basing its argument on the Supreme Court’s
description of other categories of unprotected speech, the government opined that depictions of animal cruelty “‘are of
such minimal redeeming value as to render [them] unworthy of First Amendment protection.” Id. at 7 (quoting the
Brief for the United States). The Court rejected this argument. According to the Court, categories of speech that are
currently unprotected (e.g., obscenity and defamation) are well defined and narrowly limited classes of speech the
regulation of which, historically, has raised little or no concern. In reviewing its case law related to those categories of
unprotected speech, the Court found that it had never created a “test” for determining new categories of speech that
would fall outside the amendment’s protections. The Court concluded:
Maybe there are some categories of speech that have been historically unprotected, but have not yet
been specifically identified or discussed as such in our case law. But if so, there is no evidence that
“depictions of animal cruelty” is among them. We need not foreclose the future recognition of such
additional categories to reject the Government’s highly manipulable balancing test as a means of
identifying them.
Id. at 9.
Regulation of Hate Speech and Pornography After R.A.V., supra note 77, 60 U. Chi. L. Rev. at 891.
108
Id. at 896.
109
Id. at 897.
107

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Kagan asks whether a coherent argument can be made for carefully considered exceptions,
nonetheless. She notes that there are two necessary (but alone insufficient) factors that argue for
exceptions to the general rule: (1) the seriousness of the harm the speech causes, and (2) the “fit”
between the harm and the viewpoint-discriminatory mechanism chosen to address it.110 Kagan
believes that regulations of hate speech and pornography could be crafted to satisfy both of these
elements.
Kagan also believes that satisfying these two elements is insufficient to justify viewpointneutrality exceptions. She uses as an example a law that would satisfy the above standards and
was designed to reduce the incidence of abortion (rather than discrimination in the hate speech
context, or violence towards women in the pornography context). She presumes if a court upheld
this statute that the decision to do so would “strike many as irretrievably wrong.”111 Some may
argue otherwise, but Kagan remains unconvinced by the counterarguments she posits.
Therefore, if the test for harm and fit cannot alone justify the exception, Kagan hypothesizes that
perhaps applying the restriction to low-value speech would be the last factor needed. “In other
words, if legislators can make the case that speech leads to harm, if the speech regulated
correlates precisely with that harm, and if the speech is itself low-value, then any viewpoint
discrimination involved in the regulation becomes irrelevant.” Kagan observes that R.A.V. seems
to reject this argument, but she contrasts R.A.V. with laws banning obscenity and finds
inconsistency in reasoning. She argues, therefore, that with the proper “fit” a law designed in this
way might withstand scrutiny.
Assuming her theory would hold, it begs the question whether pornography and hate speech
should be considered low value. She argues that to save the potential statutes’ constitutionality
pornography and hate speech should be narrowly defined to include “speech that may not count
as speech” like racial epithets, for hate speech, and “materials that operate primarily ... as
masturbatory devices” and obscenity for pornography.

Conclusion
Kagan reiterates that she finds value in the presumption against viewpoint discrimination. As a
result, she argues that any law seeking to limit hate speech or pornography would have to take
this presumption into account. Efforts to regulate this type of speech with any chance of surviving
scrutiny, she argues, will fall into the categories she has described, in her opinion. She
acknowledges that the laws may not reach every aspect of hate speech and pornography, but “they
can achieve much worth achieving.”112

110

Id. at 898.
Id. at 899.
112
Id. at 902.
111

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“When a Speech Code Is a Speech Code: The
Stanford Policy and the Theory of Incidental
Restrictions”
In “When a Speech Code Is a Speech Code: The Stanford Policy and the Theory of Incidental
Restrictions,”113 Kagan responds to a code of conduct that was put into place at Stanford
University (Stanford policy). According to Kagan, the Stanford policy—which specifically
applies to expression based upon sex, race, color, handicap, religion, sexual orientation, or
national and ethnic origin—regulated speech despite all arguments to the contrary. Ms. Kagan
argues that a speech policy of this kind presents constitutional problems. In her analysis, she
concluded that Stanford could have avoided these constitutional issues by enacting a policy that
banned all forms of harassment, threats, and fighting words because such a policy would likely
have been treated as an incidental restriction on speech. However, the Stanford policy at issue in
her article singled out particular viewpoints for punishment, a defect Kagan determined to be
potentially fatal.

Author Contact Information
(name redacted)
Legislative Attorney
[redacted]@crs.loc.gov, 7-....

113

Elena Kagan, When a Speech Code Is a Speech Code: The Stanford Policy and the Theory of Incidental Restraints,
29 U.C. Davis L. Rev. 957 (1996).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR41290. Public record. Not legal advice.