Kagan's views on free speech add heat to court fight 

Solicitor General Elena Kagan's conflicting record on free-speech issues is emerging as a flash point for Republicans considering her nomination to the Supreme Court.

The limited source material for her views on the issue and so-far opaque personal statements on free speech portend a battery of questioning when her confirmation hearings begin this summer.

"This whole area of her view of the First Amendment and political speech is something that ought to be explored by the Judiciary Committee and the full Senate," Senate Minority Leader Mitch McConnell, R-Ky., said.

A key matter of concern is whether Kagan advocated banning books or pamphlets as the government's lawyer in the landmark Citizens United case against the Federal Election Commission.

As solicitor general, Kagan argued the government had the right to limit how much corporations, unions and outside groups could spend in federal elections.

Her deputy initially argued before the court that a book published by a corporation endorsing a political candidate could be banned by the government. Kagan subsequently called a pamphlet "pretty classic electioneering" that could be banned under campaign finance law.

The court thought differently and issued a 5- 4 decision upholding the First Amendment rights of such organizations -- a ruling criticized by President Obama, who called it "a victory for big oil, Wall Street banks" and others.

Graham Wilson, a political scientist at Boston University, said it's unclear whether a debate of free speech will ignite public passions over Kagan's nomination. So far, her march to the confirmation has been notably low-key.

"The thing that surprised me was that after she was so disparaged by the Supreme Court in the Citizens case, I thought she would be in real trouble," Wilson said.

While there is not much of a paper trail so far for Kagan, Wilson said there is evidence she is a true believer in free speech without government regulation, despite the position she took as the government's advocate.

At the same time, taking her apart for arguing in favor of limiting free speech is "something they will try," Wilson said of Senate Republicans.

The matter gained little clarity after Sen. Arlen Specter, a Pennsylvania Democrat and member of the Senate Judiciary Committee, told reporters that he discussed the case with Kagan in her rounds on Capitol Hill.

"She said she thought the court was not sufficiently deferential to Congress," Specter said.

McConnell, who is taking a lead in articulating Republicans' case against Kagan, called her arguments in the Citizens case "a shock to the Founders."

"I understand that her office has to defend federal law," McConnell said. "But the client doesn't choose the argument, the lawyer does."

At the White House, press secretary Robert Gibbs said a massive release of Kagan's documents from the Clinton administration should help deliver clarity about her legal views on a number of issues.

"I don't know if it's a dearth of information or a dearth of understanding, but we're happy to provide information on what the facts are," Gibbs said.


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