Elena Kagan on the First Amendment – troubling, to say the least.

By J. DeVoy

From the Citizens United v. FEC oral arguments, Kagan argues that a statute banning books is valid as long as it is not applied.

Future post: Obama’s shockingly poor record on civil liberties, including things like giving INTERPOL agents unprecedented diplomatic immunity in the United States, the continued cyber-surveillance of average citizens, and renewing the Patriot Act despite his expressed desire to change or repeal it, which never happened despite his supersonic-speed backtracking.  His blasé attitude about the First Amendment, evidenced by the Kagan nomination, is just another data point to this end.

For those of you who maintain hope in Mein Obama for whatever reason, please send my thoughtcrime to flag@whitehouse.gov.

12 Responses to Elena Kagan on the First Amendment – troubling, to say the least.

  1. Why assume that Kagan’s client’s position in the Citizens United case – which she was ethically required to argue for – has any relation to her personal views on the subject?

    • You make a good point … but, as far as I am concerned, you only get to use that excuse once or twice. It seems that every time Kagan’s record as Solicitor General is brought up, people try and defend her saying that she’s just doing her job.

      That’s just not the case.

      The Solicitor General, like any attorney, does not simply blindly follow the orders of her client. I often tell my clients “no,” when their proposed course of action is foolhardy or harmful. That’s part of any lawyer’s job. The Solicitor General is actually tasked with doing so.

      I don’t let her off the hook that easily. Obama has nominated a really scary MacKinnonite in Elena Kagan. You can bet that those of us who believe in the Constitution will be just as appalled by her once she takes her seat as we are with Mr. Alito. She’ll just come at it from the other direction.

  2. Alan says:

    You can blame immunity for Interpol agents on Obama’s predecessor. The US was essentially forced into agreeing to give immunity to Interpol agents in exchange for the Europeans countries agreeing not to prosecute our CIA agents for extraordinary rendition and other crimes committed under the Bush administration.

    • J DeVoy says:

      He could have said no, which would be a nice CHANGE and inspire HOPE that his administration would be different. He could have stormed over the EU like he did in his Berlin “we are the world” speech and essentially said “c’mon… c’monnn, it’s me, Barack.”

      • fnord says:

        Actually, you can pretty much thank Reagan for the INTERPOL thing, since it was his executive order that granted them the protection of 2(b):
        International organizations, their property and their assets…shall enjoy the same immunity from suit and every form of judicial process as is enjoyed by foreign governments…
        And section 7(b):
        Representatives of foreign governments in or to international organizations and officers and employees of such organizations shall be immune from suit and legal process relating to acts performed by them in their official capacity…

        • J DeVoy says:

          I noted that in the original post, linked above. It’s Reagan’s EO, but Obama modified it to grant sovereign immunity under 2(c), which provides:

          Property and assets of international organizations, wherever located and by whomsoever held, shall be immune from search, unless such immunity be expressly waived, and from confiscation. The archives of international organizations shall be inviolable.

          So if they take your property, even if you couldn’t hold INTERPOL agents liable at suit, you now can’t recover it or get any kind of accounting of it. 2(b) provides “the same immunity from suit and…process as is enjoyed by foreign governments,” which is not unlimited. The provisions of 2(c) have a much more profound effect on property rights.

          • fnord says:

            The exceptions to the Foreign Sovereign Immunities Act and the Vienna Convention are pretty toothless.

            As long as
            1) They claim to be acting under their official duties (regardless of any abuse of discretion etc).
            2) They refrain from Commercial activity or Mortgages.
            3) They refrain from terrorism.

            They’re pretty much immune, unless you can find a way to search or seize property “immune from the jurisdiction of the courts of the United States and the States”.

  3. Dan Someone says:

    I didn’t hear Kagan say that banning books is “fine” or “valid” just because it’s not going to be applied. I did hear her say that there would be a good as-applied defense if the government tried to use 441(b) to ban a book, and that the government had never tried to apply the law to a book.

    To me, it sounded like she was dancing around the question because she wanted to say that it should not be applied to books, but she couldn’t say anything that would concede that the law was unconstitutional.

    Side note: What is the purpose of referring to the president as “Mein Obama” here? In what way does it strengthen, enhance, or support your positions?

    • Alan says:

      I completely missed that Nazi/Hitler dig, “Mein Obama”. Thank you for pointing it out. Anyone who would make such a comparison or use that kind of language is not worthy of being taken seriously.

      • J DeVoy says:

        It was a dig at his (remaining) supporters and their fanaticism more than at the man himself. Cheering mindlessly for empty bullshit like “we are the ones we’ve been waiting for” and shedding tears of joy upon his election as if he’s not a puppet for the same multinational interests that controlled Bush? Please. We get the government we deserve; unfortunately this time it was decided by a bunch of gender studies majors.

        • Dan Someone says:

          I hadn’t realized that there were 64,000,000 gender studies majors in the U.S.

  4. Upper1 says:

    For your future post about Obama’s poor record on Constitutional rights, perhaps this article (written by the man who inspired me to be a lawyer) can give you some ideas.


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