The Utilitarian Threat to the Freedom of Speech

"Kagan: Speech is free if government decides it has more value than 'societal costs'"
By: Mark Tapscott:

Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs."
--- Elena Kagan (Nominatee of President Obama's for the Supreme Court)

This is why I'm a libertarian. Kagan said the above regarding a statute that made it unlawful to depict animal cruelty. According to Kagan, the First Amendment does not protect free speech because it is simply the right thing to do, period, because men "are endowed by their Creator with certain unalienable Rights". The previous would be deontological reasoning, based on what is inherently good and just, irrespective of the consequences. Rather, according to her, the First Amendment protects only those kinds of speech which the government wants to have protected. For her, the argument is purely utilitarian; free speech is protected as long as the government considers that speech valuable. But as soon as it decides that a certain kind of speech is not worth protecting, then it will no longer be protected.

But since the First Amendment is a limitation on the government (rather than on the individual citizen), i.e. specifying what the government must do and may not do, it is difficult to tell what value such a utilitarian (rather than deontological) right to free speech has. Essentially, she reads the First Amendment as saying, "The government is prohibited from restricting any speech unless the government deems it necessary (for the sake of society, etc.) to restrict that speech." Is this anything but a carte blanche?

Note that this has nothing to do with the famous example of yelling "fire" in a crowded theater, or making verbal threats to another individual, etc. Such are categorized as posing a "clear and present danger". At that point, the speech comes to resemble not so much speech as concrete action. Expressing an opinion that someone ought to die, and actually killing him, are obviously different in kind. Voicing an intention to kill someone is somewhere between the two, being somewhat speech-like and somewhat action-like. What the doctrine of "clear and present danger" says is that voicing an intention to kill someone is more similar to actually killing him than it is to expressing a vague and abstract opinion. Likewise, yelling "fire" in a theater actually causes material harm to others, whereas merely saying "I think there ought to be a fire here in this theater" does not pose a harm to others. According to Schenck v. United States (1919),

The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the United States Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.

To make this point even more clear, the decision in Brandenburg v. Ohio (1969) said,

These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

But people such as Kagan would prefer to ban any speech which is deemed harmful to society, based on who-knows-what kind of standards. Similarly, many Republicans wish to ban flag-burning, deeming it morally offensive, even though such burning poses no actual threat to anyone, i.e. even though it does not pose a "clear and present danger" nor does it incite to "imminent lawless action".

Cf. "Attack of the Utility Monsters: The New Threats to Free Speech" by Dr. Jason Kuznicki, where the author shows that the logic behind proposed hate-speech legislation and flag-burning legislation is that the pleasure of the racist or flag-burner is less than the pain of the recipient. This is a doubtful assumption - for who says the racist isn't getting more pleasure than his recipient is pain, and how do we measure pain and pleasure? - but more importantly, it is difficult to tell how the government has jurisdiction to regulate pain and pleasure anyway. And if burning a flag or spouting racist epithets is indeed offensive and causes pain, what if someone merely objectively reports on the racism or flag-burning of another? As Dr. Kuznicki points out, the audience will feel the same amount of pain and loss whether it is a racist spouting epithets or a newspaper reporting the racist epithets of another, and an audience will feel the same pain whether seeing someone burn a flag or seeing someone else objectively and dispassionately report the flag-burning performed by another. So where does it end? Would the newspaper be prohibited to air and article dispassionately discussing racism and flag-burning?

However, it may be unfair to criticize Kagan herself. According to "Kagan's First Amendment record causes concern" by David L. Hudson Jr.,

Kagan’s job as solicitor general is to advance the legal positions of the U.S. government, which often means defending the constitutionality of federal statutes from First Amendment challenge.

First Amendment advocates should consider the arguments Kagan advanced as solicitor general, but shouldn’t assume that she would hold such positions as a justice. The roles of advocate and judge are quite different.

"It's difficult, if not unfair, to judge someone on the basis of the positions he or she took as an advocate," said Robert Richards, director of the Pennsylvania Center for the First Amendment Center. "All attorneys are required to represent their sides zealously. It is more instructive to look at potential justices' speeches and writings to get a glimpse into their own ideologies, temperament and philosophy of jurisprudence."

In other words, Kagan was almost literally playing the "devil's advocate", justifying her client - the United States government, in this case - regardless of whether she agreed or disagreed with her own client. A murderer's attorney must defend the murderer, but this doesn't mean the attorney condones murder, obviously. Perhaps Kagan herself, then, doesn't have such objectionable views on the freedom of speech. Perhaps time will tell?