While Kagan appears to be focusing more on conduct based regulation when it comes to hate speech, one has to be concerned when we start talking about a categorical balancing of the costs and “value” inherent in certain speech. This takes us into a legal form of “social engineering” that has no place on the court.briancuban.com
I am not contending that Kagan is going to go off the “free speech deep end” but to even consider any type of “value balancing” approach to hate speech even with the best intentions could take us down a free speech rabbit hole that will be hard to climb out of, setting the 1st Amendment back decades.
Is there low value speech? I agree with Kagan that there is. That does not mean the court should start adding ad hoc categories designed to tell me what it is. I can decide for myself and make my personal decision if I want to view it, engage in it or debate it. There is already enough subjectivity to go around without opening up a Pandora’s Box of moral interpretation.
The key quotes from Kagan are there.