Kagan’s Thoughts on Free Speech and Technology: Cable and Broadcasting in 1995

Those interested in poking around in Dean Elena Kagan’s documents can turn to her Senate Committee Questionnaire, filed when she was appointed Solicitor General.

Those interested in free speech & technology issues will find at least two documents, both from 1995, of some interest.

In one, titled Remarks – On Constitutionality of Speaker-Based Restrictions at American Bar Association Panel on Communications Law on the Questionnaire (but more simply titled “Remarks on Turner” in the actual file), she discusses Turner Broadcasting, a case that may be important for the future of media and Internet regulation.  She found the speaker-preferences in that case worthy of even more heightened scrutiny than the majority imposed (and I think the majority imposed inappropriately high scrutiny).

I think her views were  in the mainstream of liberal thought back then, though perhaps not now.  The second Turner seemed more appropriately deferential to Congress (not to the cable companies) perhaps partly because of Justice Breyer joined the court.

In a second one, titled Remarks – On Relationship Between First Amendment Doctrine and Technological Change at Libel Lawyer’s Conference, which was apparently a speech to Newspaper Association of America, National Association of Broadcasters, and the Libel Defense Resource Center, she said broadcast doctrine’s scarcity rationale never made sense (which would have been a standard thought among liberal scholars then and now, though I disagree with the consequences of that thought).  She also said that judges should apply standard First Amendment doctrine to new technologies, which may not tell us too much other than that she disagreed with the perceived “different” standard applying to broadcast because of the scarcity rationale. But it could also mean she is endorsing what Justice Souter called “first, do no harm” and Justice Breyer called “analogical reasoning” in their opinions in the Denver Area case: namely that Justices shouldn’t rush to adopt new (or even existing) standards for new technologies and should “wait and see” as the technologies evolve.

I am going to write up some more on these two, mainly as springboards to discuss the issues, rather than as discussions of Kagan’s speeches 15 years ago.

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