Kagan First Amendment article indicates appreciation for student speech rights

Supreme Court Justice nominee Elena Kagan has no paper trail of judicial rulings on the First Amendment, but her academic writings suggest that she appreciates the need for robust constitutional protection of speech on campus, even when the words may be hurtful or offensive.

In a 1996 article published in the University of California-Davis Law Review, then-Associate White House Counsel Kagan zeroed in on the constitutional flaws in an anti-discrimination code promulgated by Stanford University. The code purported to prohibit all “discriminatory harassment,” including words that are “commonly understood to convey” hatred or contempt for people based on characteristics such as race, gender or religion.

The Kagan article was part of a UC-Davis symposium that examined the Stanford speech code in light of a California superior court’s 1995 ruling striking down the code in the case of Corry v. Stanford University. Although Stanford, a private institution, is not bound by the First Amendment, the court found the speech code invalid under California’s “Leonard Law,” a unique state statute that requires private colleges to abide by constitutional free-speech principles.

Kagan’s article was a rejoinder to a piece in the same issue by the lead author of the Stanford policy, law professor Thomas C. Grey. In his article, Grey defended the code as only an “incidental” restraint on speech that was actually aimed at a much larger body of discriminatory conduct.

The doctrine of “incidental restraints” on speech is a way in which courts decide whether a particular regulation violates the First Amendment. If the regulation only “incidentally” impacts the content of speech and has an otherwise legitimate motive unrelated to the speech, then it should pass constitutional muster. A classic example would be a safety-motivated ban on outdoor fires that incidentally happens to prevent a protester from burning an American flag at a demonstration.

As did the California court, Kagan flatly rejected the characterization of the Stanford policy as a mere “incidental” burden on speech: “The Policy, although referring to a broad anti-discrimination ideal, is nonetheless — on its face and by its terms — all about expression. … The Policy, in other words, constitutes the very opposite of the usual incidental restraint: a specific and considered judgment of the desirability of restricting certain expression.”

Kagan noted that, even before enacting the anti-discrimination policy, Stanford already had a general civility code known as “The Fundamental Standard,” which dictates respect for the rights of others. The fact that the school then enacted a more targeted policy singling out discriminatory words, she argued, demonstrates that the policy was expressly directed at the content of the speech — the opposite of an “incidental” restraint.

Legal defects aside, Kagan questioned the wisdom of a policy that allows apologists for discrimination to claim the high ground of the First Amendment. “It is poor strategy to turn a battle about discrimination into a battle about speech — to mount the kind of attack most likely to transform the forces of hatred into the defenders of constitutional liberty,” she wrote.

In a footnote to her article — and it is just a footnote, and a 15-year-old one at that — Kagan arched a rhetorical eyebrow at Stanford’s broader policy commitment that, regardless of California state law, students would be afforded the full benefit of First Amendment-like rights: “Whether a university like Stanford should commit itself in this manner seems to me a difficult question, which this [article] will not address.” One hopes that the footnote was simply an academic’s chin-stroking observation and not a hint at deeper skepticism of the importance of free-speech rights at private universities, many of which (like Stanford) voluntarily agree to be governed by principles comparable to the First Amendment.

Given the disturbing First Amendment blind spots of President Obama’s previous nominee, Justice Sonia Sotomayor, it is at least somewhat reassuring that Kagan’s public pronouncements on the rights of students have not been overtly hostile. It’s a shameful commentary on the sorry state of the law that “not overtly hostile” is grounds for celebration.