CNSNews.com editor-in-chief Terry Jeffrey is determined to portray Elena Kagan as a censor for arguing the government's side in the Citizens United case before the Supreme Court.
A May 10 article by Jeffrey originally carried the misleading headline "Elena Kagan: Government Can Ban Political Pamphlets" (since changed to the less snappy "Chief Justice Roberts: Kagan Asked Court to 'Embrace Theory of First Amendment That Would Allow Censorship Not Only of Radio and Television Broadcasts, But Pamphlets and Posters'"). Jeffrey recounted government arguments before the Supreme Court in the Citizens United case, which sought to overturn restrictions on political spending by corporations. The Court ultimately ruled in favor of overturning the restrictions.
This was followed by a May 12 column by Jeffrey rehashing the case and concluding: "Members of the Senate Judiciary Committee need to force Kagan to make extensive use of her faculty of speech in explaining why she believes government can shut people up."
But Jeffrey is assuming that Kagan's personal views on "censorship" are the same ones she argued for on the govermnent's behalf in the Citizens United case -- something for which he has provided no evidence.
When Kagan made her arguments in the Citizens United case, she was an employee of federal government making the federal government's arguments. In other words, she was doing her job. As SCOTUSblog's Tom Goldstein points out:
Some critics (and supporters) attribute to Kagan views on certain legal issues based on positions she took as Solicitor General. That criticism (and praise) is misguided. The Solicitor General acts as the attorney for the United States and therefore asserts the position of the government, without regard to whether she personally shares the same view. For Kagan not to have zealously pursued the interests of the United States in each case would have been an abdication of her duties. There are only a few exceptions – rare throughout our history – in which the Solicitor General concludes that the government’s position has no reasonable basis and therefore refuses to assert it; Kagan has not participated in such an extreme case.
Further, since she was arguing to uphold existing law as approved by Congress -- not impose new restrictions on political speech -- the point of view she was arguing is hardly out of the mainstream, as Jeffrey wants you to believe.
Jeffrey is basing his attack on Kagan on an assumption that he has no evidence to support.
UPDATE: Newsmax's Dan Weil took Jeffrey's initial article as inspiration for his own misleading attack on Kagan, headlined "Kagan Argued to Ban Political Pamphlets." Like Jeffrey, Weil baselessly suggests the views Kagan argued are her personal views.