Kagan ?

[Danzig]

I'm sorry, but I don't see why it would make it easier to suppress speech.

[Rupert Pupkin]

Originally Posted by Danzig

I'm sorry, but I don't see why it would make it easier to suppress speech.

Right now if a 1st Ammendment case makes it to the Supreme Court, the Court's focus is on the impact of the law they are reviewing. If the Court feels that a new law has the effect of restricting free speech, that law will probably be overturned by the Court.

Kagan is saying that the government's reasons for restricting free speech were what mattered most and not necessarily the effect of those restrictions on speech. That is a real departure. That would make it easier for the government to restrict speech.

Right now, it's very hard for the government to restrict free speech because if they pass a law that restricts free speech, the law will probably be overturned because the Court is focused on the effects of the law. Any law that has the effect of limiting free speech will probably be overturned. If the Court starts changing the way they look at these cases and decides that it's not that important whether a new law restricts free speech as long as the "intent" of the law is good, then that would be a weakening of our 1st Ammendment protections.

[Danzig]

'In her article, Kagan said that examination of the motives of government is the proper approach for the Supreme Court when looking at whether a law violates the First Amendment. While not denying that other concerns, such as the impact of a law, can be taken into account, Kagan argued that governmental motive is “the most important” factor.

In doing so, Kagan constructed a complex framework that can be used by the Court to determine whether or not Congress has restricted First Amendment freedoms with improper intent.

She defined improper intent as prohibiting or restricting speech merely because Congress or a public majority dislikes either the message or the messenger, or because the message or messenger may be harmful to elected officials or their political priorities.

The first part of this framework involves restrictions that appear neutral, such as campaign finance laws, but in practice amount to an unconstitutional restriction. Kagan wrote that the effect of such legislation can be taken as evidence of improper motive because such motives often play a part in bringing the legislation into being.'


---that's from the article you linked. she's not saying only intent should be considered. she says it's the first, but not only, consideration in her opinion.

[Rupert Pupkin]

Originally Posted by Danzig

'In her article, Kagan said that examination of the motives of government is the proper approach for the Supreme Court when looking at whether a law violates the First Amendment. While not denying that other concerns, such as the impact of a law, can be taken into account, Kagan argued that governmental motive is “the most important” factor.

In doing so, Kagan constructed a complex framework that can be used by the Court to determine whether or not Congress has restricted First Amendment freedoms with improper intent.

She defined improper intent as prohibiting or restricting speech merely because Congress or a public majority dislikes either the message or the messenger, or because the message or messenger may be harmful to elected officials or their political priorities.

The first part of this framework involves restrictions that appear neutral, such as campaign finance laws, but in practice amount to an unconstitutional restriction. Kagan wrote that the effect of such legislation can be taken as evidence of improper motive because such motives often play a part in bringing the legislation into being.'


---that's from the article you linked. she's not saying only intent should be considered. she says it's the first, but not only, consideration in her opinion.

Yes, that is exactly correct.

[Rupert Pupkin]

I strongly disagree with Kagan's position that it is ok for the government to ban certain campaign related books and pamphlets depending on who paid for their publication.

http://thehill.com/blogs/blog-briefi...ould-ban-books