Elena Kagan apparently a substantial risk to the First Amendment in the adult entertainment department

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Jun 25, 2010 Elena Kagan apparently a substantial risk to the First Amendment in the adult entertainment department


Bill of Rights (From public domain.)

Thanks to a listserv member for posting this opinion article by Josh Gerstein in today’s Politico that paints Elena Kagan as a potentially substantial risk to the First Amendment when it comes to adult entertainment.

The First Amendment gets severely damaged when First Amendment exceptions are made for adult entertainment. However, Republican opponents of Kagan are unlikely to raise this above issue, because many in their morally conservative constituency want to censor adult entertainment. I doubt many or any Senate Democrats will complain much about this, in order to maintain party unity.

The information in this article comes to me on the eve of Kagan’s confirmation hearings. I have been zealously defending First Amendment rights for all, including adult entertainment, for over a decade. I will try to look independently into the matter further and soon.


ADDENDUM I: The Library of Congress has an extensive linked list of Elena Kagan’s writings.

Here are some of Ms. Kagan’s articles that I will review to obtain further insight into her views on free speech and free expression:

Regulation of Hate Speech and Pornography after R. A. V. , 60 U. CHI. L. REV. 873 (1993).

– A Libel Story: Sullivan Then and Now, 18 LAW & SOC. INQUIRY 197 (1993).

The Changing Faces of First Amendment Neutrality: R.A.V. v St. Paul, Rust v Sullivan, and the Problem of Content-Based Underinclusion, Author(s): Elena Kagan, Source: The Supreme Court Review, Vol. 1992 (1992), pp. 29-77, Published by: The University of Chicago Press, Stable URL: 

– When a Speech Code Is a Speech Code: The Stanford Policy and the Theory of Incidental Restraints, 29 U.C. DAVIS L. REV. 957 (1995-1996).

Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. CHI. L. REV. 413 (1996).

ADDENDUM II: Here are some more links relevant to Elena Kagan, the First Amendment, and her biography beyond the First Amendment:

– Here are biographical links about Ms. Kagan.

– Last month, Eugene Volokh briefly addressed Ms. Kagan as a scholar.

– Here is a short biography by Tom Goldstein from May 2010.

– In early 2009, when Kagan was a solicitor general nominee, the First Amendment Center’s David Hudson claimed that Kagan had an impressive First Amendment resume.

– Here is a St. Petersburg Times article on Kagan’s law review articles.

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