Elena Kagan on Pornography and Hate Speech
by PROFESSOR WILL HUHN on MAY 12, 2010
in CONSTITUTIONAL LAW,ELENA KAGAN,FREEDOM OF SPEECH,SCOTUS,WILSON HUHN
In 1993 Kagan authored an article Regulation of Hate Speech and Pornography After R.A.V., 60 University of Chicago Law Review 873 (1993), in which she cautioned Americans not to disparage the principle of viewpoint neutrality. It is a moderate, well-reasoned piece that anticipates later developments in First Amendment law.
Kagan wrote this article at a time when many governmental entities were seeking to outlaw hate speech and pornography. The City of St. Paul, Minnesota, enacted a law that made it a crime to display certain symbols that were "likely to arouse anger, alarm, or resentment on the basis of race, religion, or gender." The City of Indianapolis adopted an ordinance making it a crime to depict women as "the graphic sexually explicit subordination of women, whether in pictures or in words." The Supreme Court struck down both of these laws. In R.A.V. v. St. Paul (1992) the Court struck down the St. Paul ordinance on the ground that it was a "viewpoint-based" law – that is, it is a law that punishes people for expressing a particular point of view. In 1985, in the case of American Booksellers v. Hudnut, the Seventh Circuit Court of Appeals struck down the Indianapolis ordinance on the same ground. Writing for the court, Judge Easterbrook said, "the Indianapolis ordinance … is not neutral with respect to viewpoint." The Supreme Court summarily affirmed the Circuit Court's decision in Hudnut in 1986.
Kagan defends the decisions in both R.A.V. and Hudnut. She states:
[T]he principle of viewpoint neutrality, which now stands as the primary barrier to certain modes of regulating pornography and hate speech, has at its core much good sense and reason. Although here I can do no more than touch on the issue, my view is that efforts to regulate pornography and hate speech not only will fail, but also should fail to the extent that they trivialize or subvert this principle.
In the final portion of her article Kagan suggests three ways that laws against hate speech or pornography could be enforced. She states that the government could:
1. Prohibit conduct (not speech) that is motivated by hatred (such as physical assaults) or sexual degredation of women (such as prostitution and pimping). This approach was used in the case of Wisconsin v. Mitchell (1993), in which the Court affirmed the conviction of an individual who had led a gang's racial attack upon another person;
2. Enhance existing content-based laws. She states: "One potential course is to enact legislation, or use existing legislation, prohibiting carefully defined kinds of harassment, threats, or intimidation, including but not limited to those based on race and sex." This approach was later adopted by the Supreme Court in the case of Virginia v. Black (2003), in which the Court upheld a law making it illegal to burn a cross with the intent of intimidating someone;
3. Expand the definition of obscenity so that it regulates the depiction of sexual violence rather than simply "prurient" depictions of sex. The Supreme Court has not yet considered this possibility.
Kagan describes her article as an "essay" and that is correct. It is an opinion piece, not a scholarly treatment of this issue. It is clearly written, moderate in tone, and balanced in its reasoning. There is absence of posturing or characterization. Near the end her reasoning becomes a bit murky, but that is in part due the fact that the Court's decisions in R.A.V. and Hudnut offered so little guidance in this area of the First Amendment. Kagan's article makes a valuable contribution to the discussion over the regulation of hate speech and pornography.
Throughout the article Kagan's principal theme is a message – a message addressed particularly to liberals – not to tear down the prohibition on viewpoint-based laws, which "has come to serve as the very keystone of First Amendment jurisprudence."