Kagan, the solicitor general of the United States under President Obama, 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.”
In her article, Kagan said that examination of the motives of government is the proper approach for the Supreme Court when looking at whether a law violates the First Amendment. While not denying that other concerns, such as the impact of a law, can be taken into account, Kagan argued that governmental motive is “the most important” factor.
In doing so, Kagan constructed a complex framework that can be used by the Court to determine whether or not Congress has restricted First Amendment freedoms with improper intent.
She defined improper intent as prohibiting or restricting speech merely because Congress or a public majority dislikes either the message or the messenger, or because the message or messenger may be harmful to elected officials or their political priorities.
The first part of this framework involves restrictions that appear neutral, such as campaign finance laws, but in practice amount to an unconstitutional restriction. Kagan wrote that the effect of such legislation can be taken as evidence of improper motive because such motives often play a part in bringing the legislation into being.
“The answer to this question involves viewing the Buckley principle [that government cannot balance between competing speakers] as an evidentiary tool designed to aid in the search for improper motive,” Kagan wrote. “The Buckley principle emerges not from the view that redistribution of speech opportunities is itself an illegitimate end, but from the view that governmental actions justified as redistributive devices often (though not always) stem partly from hostility or sympathy toward ideas or, even more commonly, from self-interest.”
Kagan notes, however, that such “redistribution of speech” is not “itself an illegitimate end,” but that government may not restrict it to protect incumbent politicians or because it dislikes a particular speaker or a particular message.
Laws that only incidentally affect speech are constitutional, Kagan said, because the government’s motive in enacting them is not the restriction of First Amendment freedom but the prohibition of some other – unprotected – activity.
She argues in the piece that a law banning fires in public places is not unconstitutional, even if it means that protesters cannot burn flags in public. A law outlawing flag burning protests, however, would be, because the motive is to stop a particular protest.
Kagan also argued that the Supreme Court should not be concerned with maintaining or protecting any marketplace of ideas because it is impossible for the court to determine what constitutes an ideal marketplace, contending that other types of laws, such as property laws, can also affect the structure of the marketplace of ideas and that a restriction on speech may “un-skew” the market, rather than tilt it unfavorably.
“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 discourse,” Kagan wrote.
Instead, the Supreme Court should focus on whether a speaker’s message is harming the public, argued Kagan in her article.
While Kagan does not offer an exhaustive definition of ‘harm,’ she does offer examples of speech that may be regulated, such as incitement to violence, hate-speech, threatening or “fighting” words.
The government, she concludes, may not express its disfavor with an opinion or speaker by burdening them with restrictions or prohibitions, unless it can show that their speech is causing some type of public harm.
“The doctrine of impermissible motive, viewed in this light, holds that the government may not signify disrespect for certain ideas and respect for others through burdens on expression,” Kagan wrote. “This does not mean that the government may never subject particular ideas to disadvantage. The government indeed may do so, if acting upon neutral, harm-based reasons.”
Kagan says that government is also prohibited from treating two identically harmful speakers differently. To do so, she argues, would be to violate what she views as the principle of equality -- making the unequal restriction unconstitutional.
“But the government may not treat differently two ideas causing identical harms on the ground that thereby conveying the view that one is less worthy, less valuable, less entitled to a hearing than the other,” she wrote. “To take such action -- in effect, to violate a norm of ideological equality -- would be to load the restriction of speech with a meaning that transcends the restriction's material consequence.”