No Must-Carry For Kagan


Washington — If the U.S. Supreme Court
decides to hear Cablevision’s challenge to
must-carry regulations, it is almost certain
that Supreme Court nominee and Solicitor
General Elena Kagan would not be in on the
decision if, as expected, she is confirmed to
the court.

Kagan was tapped by President Obama,
and, despite immediate complaints by Republicans,
is expected to have a good shot at
making the bench.

As the Solicitor General, it was Kagan’s
name on the brief to the Supreme Court
arguing that the court should not take the
must-carry case. The Solicitor General usually
represents the FCC in Supreme Court

Justices regularly recuse themselves from
cases in which they have or could appear to
have a conflicting interest.

For example, the last Solicitor General
who became a Supreme Court Justice, Thurgood
Marshall, appeared to recuse himself
from any case he had participated in during
his previous job, or at least those in which
his name appeared on the brief, according
to, which did a study of his

That precedent might even be more compelling
for Kagan. Her legal career included
a stint clerking for Marshall.

“Yes, she will be recused from any consideration
of the Cablevision must-carry case
if cert is granted,” said Andrew Schwartzman,
CEO of the Media Access Project, using
shorthand for certiorari or the process
by which the court decides whether to hear
a case. He added this caveat: “They can do
whatever they want and they don’t have to
explain it. So my answer is with great certainty
because she will, but if she doesn’t, she
won’t have to justify it.”

Recusal from a case that cable operators
argue is, in part, about government compelled-
speech might or might not be a good
thing for the cable industry.

Kagan has been getting mixed reviews
as various groups try to read the tea leaves
of her scholarly writings to divine how she
might judge from the bench.

While she has no judicial opinions to
vet, Kagan’s views on the First Amendment
have given some folks hope that she has a
healthy skepticism of at least the motives
behind government attempts to equalize
speech by restricting some voices and enhancing

Others are not so sure.

Kagan argued before the Supreme Court in
the Citizen’s United case, in which the government
defended what the media industry
and many First Amendment attorneys argued
was a ban on political speech. The Supreme
Court threw out the ban.

Her office also defended an effort to ban
depictions of animal cruelty that the court

In the animal cruelty case, the government
had argued that the animal cruelty depictions
should join the list of categorically unprotected
speech that now includes obscenity,
defamation, fraud, incitement and speech
integral to crimes, and to do so via a societal
balancing act. The court said that suggestion
was “startling and dangerous.”

Kagan, who was nominated last Monday
(May 10) for the seat being vacated by John
Paul Stevens, is the former dean of Harvard
Law School and a University of Chicago Law
School faculty member. She has never been
a sitting judge.

While her paper trail is thin, it includes a
number of scholarly articles on First Amendment
issues she wrote while a professor in
the 1990s, including “Regulation of Hate
Speech and Pornography After R.A.V.” and
“Private Speech, Public Purpose: The Role of
Governmental Motive in First Amendment

Back when her name was being fl oated
for the Supreme Court seat vacated by Justice
David Souter in 2009, the First Amendment
Center wrote, “Proposed regulations
on hate speech and pornography failed to
adhere to the fundamental First Amendment
principle of viewpoint neutrality —
that the government cannot favor certain
private speakers or viewpoints over others,”
the center noted, calling it part of an
“impressive pro-First Amendment record
of scholarship.”


One veteran communications attorney
called her defense in Citizens United and
her office’s push for expanding the rolls of
unprotected speech “troubling.” That attorney
also pointed out her academic writings
did not necessarily signal how she
would rule as a judge and said her role as
Solicitor General was essentially that of a
lawyer advocating for a client, in this case
the government, rather than necessarily
for her own views.

Conservative bloggers on the lookout
for a return of the so-called Fairness Doctrine
had their bludgeons out already. As
exhibit A, they pointed to the following
from “Private Speech, Public Purpose:” “If
there is an ‘overabundance’ of an idea in
the absence of direct governmental action
— which there well might be when compared
with some ideal state of public debate
— then action disfavoring that idea
might ‘un-skew,’ rather than ‘skew,’ public

“So if talk radio suffers from an ‘overabundance’
of conservative voices, government
action to ‘un-skew’ this particular public
discourse is just fine by her,” Seton Motley,
director of communications at the Media Research
Center, wrote.