Solicitor General Elena Kagan has drawn some criticism for her office's position in U.S. v. Stevens, a case about so-called "crush videos" that depict acts of animal cruelty.
In trying to defend a law banning such videos against a First Amendment challenge, Kagan's office endorsed a balancing test weighing “the value of the speech against its societal costs.” Chief Justice John Roberts Jr. called that idea “startling and dangerous” when he wrote the majority opinion in April striking down the law, and The New York Times’ editorial board questioned it as recently as Monday.
Kagan, at her confirmation hearing for the Supreme Court today, said such a First Amendment balancing test should be used only rarely. Her office decided to endorse the test in the animal cruelty case because, she said, the Court has used a similar test to restrict speech in cases involving obscenity and child pornography.
The government lost the Stevens case 8-1, a fact that Kagan attributed largely to how the law was written.
“I hesitate to criticize Congress’ work, 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,” Kagan said. “Another statute,” she added, “would have been easier to defend on First Amendment grounds, but we did the best we could with it.”