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Professor Kagan, Justice Kagan, and Snyder v. Phelps

Yesterday’s argument in Snyder v. Phelps produced more than its share of intriguing story lines: two first-time Supreme Court oral advocates (including one representing her father), a spirited debate inside the courtroom, and an even more spirited demonstration outside. And, of course, there are the you-can’t-be-serious facts of the case: protesters holding up signs saying “Thank God for dead soldiers” (and worse) near the funeral of a fallen Marine and then posting similar messages on the Internet; the slain soldier’s father winning a verdict of $5 million for intentional infliction of emotional distress and invasion of privacy; the Court of Appeals reversing the entire judgment on First Amendment grounds.

I want to focus, though, on a different story line: what the Snyder argument may tell us about the First Amendment worldview of the Court’s newest member.

One of the unfairest knocks on Elena Kagan during the confirmation process was that she was yet another “stealth nominee”—a liberal, sure, but one without a paper trail, whose personal views about the Constitution were shrouded in a fog of careerism and collegiality. This was never an accurate charge. As a law professor, Kagan wrote around 350 pages worth of law review articles. That may be less than most people who get tenured appointments at Chicago or Harvard, but it’s about 320 pages more than John Roberts ever published. (Don’t get me wrong: Roberts was an extremely qualified nominee—but he was the one without a paper trail.) More importantly, Kagan’s publications reveal a lot about how she approaches constitutional law.

About half of Kagan’s academic writings dealt with the First Amendment. In these papers, particularly a 1996 article in the University of Chicago Law Review, she advanced a provocative thesis: that the central goal of First Amendment law is to root out improper government motives. What’s so provocative about that? Well, as Kagan noted in the Chicago article, most visions of the First Amendment—especially at the time she was writing—were either speaker-based (how can courts maximize expressive opportunities?) or audience-based (how can courts enhance public discussion and self-government?). Her theory was different: it was government-based. That is, in Kagan’s view, the First Amendment aims to ensure that regulations affecting speech are not based on impermissible government motives. For Kagan, this meant that speech generally can’t be penalized on the grounds that the government, or a majority of citizens, believe the ideas being espoused are wrong or offensive.

Kagan’s 1996 article captured something important about the Court’s then-existing case law. It also proved prescient: much of the Court’s First Amendment jurisprudence since then has been focused on sorting valid from invalid governmental purposes. That’s why the Court has become so preoccupied with the distinction between “content-based” and “content-neutral” laws. More generally, it’s why the Court often cares more about the way speech-regulating laws are written (and the reasons they were passed) than about the particular factual circumstances in which they end up being applied.

Which brings us back to Snyder. Right from the opening gavel, Sean Summers, counsel for the dead soldier’s father, trained the Court’s attention on the particular circumstances of this case: “We are talking about a funeral. If context is ever going to matter, it has to matter in the context of a funeral.” (Disclosure: I participated in a moot court to help prep Summers for the argument.) His strategy was understandable, and for the most part it worked: several justices seemed receptive to his complaint that the defendants had hijacked a private funeral in order to gain maximum publicity for their views. Context is the key to Summers’s argument: whatever the First Amendment may protect in general, surely it can’t allow people with offensive messages to treat the private funeral of a private figure as their own Speaker’s Corner.

What’s interesting is that of all the justices, Kagan pushed back hardest against this contextual approach. She began by reciting to Summers what she called the “key” sentence from an earlier Court opinion: “Outrageousness in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views or perhaps on the basis of their dislike of a particular expression.” Why, she asked, should that sentence be any less true just because the plaintiff in this case happened to be a private figure?

Later, she pressed Summers about the fact that most states have now passed statutes barring disruptions within a fixed distance of funerals. Why aren’t those laws, which are written in content-neutral terms, a better way to regulate funeral protests than the emotional distress tort, which depends on the potentially loaded concept of outrageousness?

With both of these lines of questioning, Kagan shifted the focus of the discussion away from the particular facts of the case and toward the language and purposes of the laws and regulations that have been, or might be, enforced. That shift is consistent with her academic scholarship from the 1990s—and it may presage her approach to First Amendment cases as a justice.

How would a Kagan-style, government-based approach to the First Amendment play out in Snyder v. Phelps? Here’s where things get tricky. For one thing, the law in this case is not a statute; it’s a common-law tort crafted by state judges. That means it’s “enforced” not by police or prosecutors but by juries. That makes it harder to ascribe motivations to the government. And the emotional distress tort is, at least technically, content-neutral; liability could be based on conduct and not just speech. Still, on balance, the core purpose of the tort seems to be regulating outrageous conduct, which will often mean penalizing offensive speech. It’s hard to see Justice Kagan (or at least Professor Kagan) being totally comfortable with that.

The usual caveats apply, of course. Questions at oral argument don’t always offer a reliable window into a justice’s thinking. Kagan’s academic articles were written almost fifteen years ago. They are largely descriptive rather than normative: that is, they describe what the Court’s First Amendment jurisprudence is, not what it should be. And she is only one justice out of nine; much depends on who is assigned to write the opinion.

Finally, none of these ruminations matter much if the Supreme Court is simply result-oriented—or, as a commentator once put it, “fractured, clerk-driven, and uninterested in theoretical issues.” Who was that commentator? Elena Kagan, in the same 1996 Chicago article. Ouch.

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Articles posted in the Cockle Blog are for informational purposes only. Nothing in the Cockle Blog should be taken for legal advice. In fact, Cockle Blog articles are not a substitute for proper legal research conducted by licensed attorneys.

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