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On First Amendment, Kagan Has Sympathized With Conservative Justices

Publication Date: 
May 16, 2010
The New York Times
Adam Liptak

Professor Kathleen Sullivan is quoted in this article on U.S. Supreme Court nominee Elena Kagan's scholarship on the First Amendment. Adam Liptak of the New York Times reports:

In her early years as a law professor, Elena Kagan wrote almost exclusively on the First Amendment. There are indications in those writings that her views on government regulation of speech were closer to the Supreme Court’s more conservative justices, like Antonin Scalia, than to Justice John Paul Stevens, whom she hopes to replace.

Stevens is not a First Amendment absolutist. He wrote the majority opinion in 1978 in Federal Communications Commission v. Pacifica Foundation which said the government could ban the broadcast of George Carlin’s “seven dirty words” monologue. And he dissented in Texas v. Johnson, a 1989 decision striking down a state law that made it a crime to burn the flag, while Scalia was in the majority.


“Her articles on free speech showed a strong sense of the importance of civil liberties as a bulwark against ideological orthodoxy — a perspective that will give her ready camaraderie with free speech devotees on the court like justices Scalia, Kennedy and Thomas,” Kathleen Sullivan, a former dean of Stanford Law School, said in a blog post on The New York Times’ website.

About the flag-burning case, Kagan wrote in 1996 that “the court, in invalidating the statute, made the correct decision.”