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Fuzzy on muzzles

The only way to know whether a society has freedom of speech is to look at how it treats unpopular speech, which doesn’t need government protection.

So, how is it that in the Boston Phoenix’s “13th Annual Muzzle Awards," published during the very week the Senate was holding hearings into Elena Kagan’s nomination to the Supreme Court, the Phoenix mentioned only that Kagan is likely to embrace executive authority, and failed to inform us that — if she becomes a Supreme Court justice — her attitude toward free speech could be the greatest threat the First Amendment has faced since 1791, when the Bill of Rights was ratified. Is the Phoenix so deluded as to think hostility toward free speech is the exclusive province of the right wing? As Harvey Silverglate’s sidebar illustrates, Harvard University, where Kagan served six years as dean of the law school, seems to be an institution that inculcates disdain for freedom of speech in its staff.

Given Kagan’s years at Harvard, the Phoenix certainly can’t argue that she wasn’t included as Muzzle Award recipient because she lacked a New England connection. Kagan should have been first in the list of Muzzle Award recipients. Instead, her hostility toward the First Amendment wasn’t even mentioned.

And that, to coin a phrase, left this reader speechless!

Mark Rosenthal
Arlington

Harvey Silverglate responds:
In an earlier piece I did for the Phoenix, I stressed this caveat: the positions Kagan took as solicitor general aren’t necessarily reflective of her personal beliefs, since she was playing an institutional role that sometimes requires that one defend a statute with a clothespin attached to one’s nose. And in her confirmation hearings, Kagan did distance herself as best she could from the statute she defended in United States v. Stevens. “I hesitate to criticize Congress’s work,” she said, “but it was a statute that was not drafted with the kind of precision that made it easy to defend from a First Amendment perspective.” Still, there’s enough to Kagan’s First Amendment jurisprudence to make us wary, including her full-bore support for campaign finance laws that seek to limit core political speech. I think Dan Kennedy and I will be following her closely from here on out.