Bench Memos

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Kagan on Free Speech


An unsigned Daily Princetonian editorial from February 8, 1980, during Elena Kagan’s tenure as editorial chairman, has surfaced. To the uninitiated, the piece looks free-speech-friendly, even open-minded, decrying as it does the university’s decision to exclude an outside political organization (the Labor party) from speaking or demonstrating on campus. At one point, it even quotes Adam Smith.

But the piece denies the very bases of free speech in a civil society: the rights to property and association.

According to the editorial, Princeton — a private university – argued to the New Jersey Supreme Court “that its educational atmosphere could be adversely affected by an influx of outside organizations.” It claimed a “First Amendment right to academic freedom which would be abridged were the state to interfere with the regulations governing the access of outside organizations to campus.”

“We,” the editorialists write, “see no reason why the courts should not…compel Princeton’s acceptance of the First Amendment rights of outside groups to engage in political speech on the university campus.”

After all, they say, “Princeton has hardly been turned into a hotbed of revolution and radicalism.” The university should “recognize that a little ferment and controversy would be an extremely positive commodity for the Princeton campus.”

The editorial reminds me of the writings of Cass Sunstein, Kagan’s Chicago Law School colleague and Obama’s information czar.

In his 2001 book Designing Democracy, Sunstein wrote that “deliberative democrats” (like Sunstein) “seek constitutional structures” and “to create institutions to ensure that people will be exposed to many topics and ideas, including ideas they reject.” A deliberative approach to a constitution, Sunstein says, is “closely attuned to the problems, even the pathologies, associated with deliberation among like-minded people.”

One of Sunstein’s “principal themes is the danger posed by group polarization – a process by which groups of like-minded people” (perhaps on a 1980s Princeton university campus?) might “move one another to increasingly extreme positions.”

Sunstein isn’t just propounding regulatory policy in his book – he’s talking to judges: “Against those who identify the contents of a good constitution with the requirements of justice, I suggest that constitutions are pragmatic instruments, not outlines of a just society.” An “appreciation of group polarization suggests” that policymakers should design and judges should affirm what Sunstein calls “creative approaches…to ensure that people do not simply read their ‘Daily Me.’”

When you consider Sunstein’s position within the Obama administration, it seems the president wasn’t just riffing in his Hampton University commencement speech, in which he warned of the trouble lurking in iPads, on the Internet, and in information.

Just this last year, Elena Kagan authored a brief to the Supreme Court arguing that “whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.” This is the kind of instrumentalism that Justice Oliver Wendell Holmes, Jr. was famous for and of which Sunstein would be proud. You might even call it Ivy League “empathy.”

The Supreme Court rejected Kagan’s argument, but, as Mark Tapscott has said, “had the justices accepted her assertion, it would have effectively repealed the First Amendment’s protection of speech and replaced it by granting government the authority to decide what speech should be permitted.”

While it cannot be said that Elena Kagan would allow government to “cognitively infiltrate” deliberations among like-minded people, something Sunstein has toyed with in other writings, it can be said that if she did indeed have a hand in this 1980 editorial, she makes Cass Sunstein look like a latecomer to the idea of keeping students and universities from being confined to their “Daily Me.”

Stephen M. Hoersting is vice president of the Center for Competitive Politics.


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