Kagan Argued to Ban Political Pamphlets

Tuesday, 11 May 2010 10:41 AM

By Dan Weil

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Some free speech advocates are going to be very unhappy with President Obama’s choice for the Supreme Court vacancy, Solicitor General Elena Kagan.

That’s because, as CNSNews.com reports, she argued to the court in September that Congress has the constitutional right to forbid companies from engaging in political speech such as publishing pamphlets that advocate the election or defeat of a candidate for federal office.

The court, in its 5-4 decision in Citizens United v. Federal Election Commission, ruled against Kagan’s contention that the government can limit political speech by corporations.

In a scathing concurrence to the opinion, Chief Justice John Roberts blasted Kagan’s argument.

“The government urges us in this case to uphold a direct prohibition on political speech. It asks us to embrace a theory of the First Amendment that would allow censorship not only of television and radio broadcasts, but of pamphlets, posters, the Internet, and virtually any other medium that corporations and unions might find useful in expressing their views on matters of public concern,” he wrote.

“Its theory, if accepted, would empower the government to prohibit newspapers from running editorials or opinion pieces supporting or opposing candidates for office, so long as the newspapers were owned by corporations — as the major ones are. First Amendment rights could be confined to individuals, subverting the vibrant public discourse that is at the foundation of our democracy.”

Justice Anthony Kennedy wrote in the majority opinion that Kagan was defending a law that represents an illegitimate attempt to use “censorship to control thought.”

He declared, “This is unlawful. The First Amendment confirms the freedom to think for ourselves.”

Conservatives are uniting in opposition to Kagan and say her nomination will boomerang against Democrats.

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