I take it as a given that we live in a society marred by racial and gender inequality, that certain forms of speech perpetuate and promote this inequality, and that the uncoerced disappearance of such speech would be cause for great elation.
The meaning of that sentence, written by Supreme Court nominee Elena Kagan in 1993, seems pretty clear; if all the haters and racists announced, "We're going to knock it off now," most people would be pretty happy about it. In fact, I don't see how you could read that any other way. That is, unless you tried to.
Which is exactly what many on the right are doing. The rightwing media needs an outrage of the week, especially now. With "Drill baby, drill!" becoming "Spill baby, spill!" and an underregulated Wall Street all but standing trial for fraud, a distraction is called for. Those are not the big problems facing the US -- because they're big fans of offshore drilling and an unregulated Wall Street. The big problem is a Democrat in the White House, which is always a terrible affront to the Founders. Ever since Ronald Reagan, the presidency has been a Republican birthright. But American voters apparently didn't get the memo. We go ahead and vote for Democrats occasionally anyway. Democracy's biggest flaw is that, sometimes, people who aren't Republicans get elected. Then, not understanding their place, these Democrats actually have the temerity to do stuff.
So, a centrist president becomes a frothing communist. It doesn't make any difference how liberal or conservative a Democrat is, it's just automatically the case. You might have noticed that people like Bill O'Reilly spend a lot of time talking about "the far left," but no time talking about the slightly left of center. There's a reason for that. For the right, the center is right where they stand. And if you've got any liberal tendencies at all, you're far to the left of where they stand. As a result, there's no such thing as left-leaning -- if you're on the left at all, you're on "the far left," since those to their left are still conservatives.
But, as we see with the treatment of Elena Kagan, they don't need any actual evidence to back this up. You just grab some random quote, report it completely out of context, and there ya go -- instant commie. And the rightwing media isn't just taking the quote out of the larger context, they're taking words out of context of the quote itself.
President Obama's nominee for the Supreme Court, Elena Kagan, argued certain forms of speech that promote "racial or gender inequality" could be "disappeared."
In her few academic papers, Kagan evidences strong beliefs for court intervention in speech, going so far as to posit First Amendment speech should be weighed against "societal costs."
The article goes on to quote the sentence in full, but the opening paragraphs set the tone of the article; Elena Kagan is an enemy of free speech. For a website that's constantly fearmongering hate crimes legislation (saying it would make Christianity all but illegal), this opportunity to tie Kagan to one of their favorite nonexistent crises must have seemed perfect -- or, at least, perfect enough with a tweak or two to reality.
And WingNutDaily is actually one of the more responsible examples. In talking about a similar 1996 paper, Rush Limbaugh had this to say:
The First Amendment is something she doesn't like. The government should have the authority to restrict free speech when they think it's doing harm. Like to who? Obama? Kagan, who is the Solicitor General "expressed that idea in her 1996 article in the University of Chicago Law Review entitled, 'Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine.' " Now this puts her in the camp with one of the czars, Cass Sunstein, who believes the same thing. So, as far as I'm concerned, I don't care what else she's done. I don't care how much she's written on Post-It Notes. I don't care how much she's written anywhere. This puts her in the Hugo Chavez world, folks. This aligns her with Communist dictators throughout history. The government will determine when speech is proper. She thinks that's OK.
No, she doesn't. Here's what she wrote in that very paper:
Consider the following snapshot of impermissible motives for speech restrictions. First, the government may not restrict expressive activities because it disagrees with or disapproves of the ideas espoused by the speaker; it may not act on the basis of a view of what is a true (or false) belief or a right (or wrong) opinion. Or, to say this in a slightly different way, the government cannot count as a harm, which it has a legitimate interest in preventing, that ideas it considers faulty or abhorrent enter the public dialogue and challenge the official understanding of acceptability or correctness. Second, though relatedly, the government may not restrict speech because the ideas espoused threaten officials' own self-interest -- more particularly, their tenure in office.
It should surprise no one that Rush Limbaugh is nothing but a liar. And it shouldn't startle anyone to find out that Glenn Beck tells pretty much the same lie.
The lesson here is clear; if the right can't come up with a reason to oppose Elena Kagan's nomination, it'll make up reasons. Because without that outrage-of-the-week, people will stop tuning in. Rightwing media is constantly trying to convince you that everything is the worse thing ever because turning the money faucet to drip would be the worst thing ever -- at least, for the blowhards who prey on the fearfulness and gullibility of their audience.
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