Kagan: Pro-State Shill

Stephan Kinsella, LRC Blog
Jun. 22, 2010

As noted in the N.Y. Times piece Court Affirms Ban on Aiding Groups Tied to Terror, the Supreme Court’s “conservatives,”

In a case pitting free speech against national security, … on Monday upheld a federal law that makes it a crime to provide "material support" to foreign terrorist organizations, even if the help takes the form of training for peacefully resolving conflicts.

Chief Justice John G. Roberts Jr., writing for the majority in the 6-to-3 decision, said the law's prohibition of providing some types of intangible assistance to groups the State Department says engage in terrorism did not violate the First Amendment.

In dissent, Justice Breyer said the majority had drawn a false analogy between the two kinds of assistance.

"Money given for a charitable purpose might free up other money used to buy arms," Justice Breyer said from the bench. But the same cannot be said, he continued, "where teaching human rights law is involved."

But even though the decision is disturbing, even the conservative majority did not go as far as Solicitor General--and now Supreme Court nominee--Elena Kagan, wanted:

Chief Justice Roberts said the government had advanced a position that was too extreme and did not take adequate account of the free-speech interests at stake.

"The government is wrong," the chief justice wrote, "that the only thing actually at issue in this litigation is conduct" and not speech protected by the First Amendment. But he went on to say that the government's interest in combating terrorism was enough to overcome that protection.

In his written dissent, which was joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor, Justice Breyer said the majority had been too credulous in accepting the government's argument that national security concerns required restrictions on the challengers' speech and had "failed to insist upon specific evidence, rather than general assertion."

The common assertion by democrats, and even by some libertarians who buy into the left-right paradigm, that liberals are better on civil liberties is obviously mistaken. (For more: see Liberals on Free Speech and Finance Campaign Laws; Slate Liberals: 'Let's see your scrotum if you want to get on an airplane,' ha ha; Re: War and Civil Liberties Under Obama.)