President Obama has nominated his solicitor general, former Harvard Professor Elena Kagan, as a Justice of the Supreme Court of the United States. Her nomination has not been uncontroversial. There is full coverage on Scot US Blog – which has the reactions of politicians and of nineteen different interest groups from “Alliance for Justice” to “People for the American Way”.
We confine ourselves to her writing on the law of libel which make interesting reading from the point of view of the “Libel Reform” campaign which appears to want to introduce some elements of US libel law into this jurisdiction.
Ms Kagan was, at one time, described by the First Amendment Center as having an “impressive First Amendment resume”. She has, however, been criticised for views on the First Amendment which, from a European perspective seem wholly reasonable. The Washington Examiner has complained that she signed a brief in US v Stevens (see our post here) which contained the following sentence:
“Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.”
The First Amendment Center has recently suggested that her First Amendment Record causes concern. There is a full analysis of her scholarship on the Volokh Conspiracy Blog. Her writings on the law of libel are of considerable interest. In 1993 she wrote a review of Anthony Lewis’s book on New York Times v Sullivan , under the title “A Libel Story: Sullivan Then and Now” (1993) Law and Social Inquiry, 197-217. She notes the iconic status of the Sullivan decision but draws attention to the problems produced by the “actual malice” require for liability in libel actions it produces. She notes in passing that it is unclear why the Court actually adopted this requirement at all (203). She describes the problem it produces in this way:
“The obvious dark side of the Sullivan standard is that it allows grievous reputational damage to occur without monetary compensation or any other effective remedy” (205).
She then asks the question – rarely considered in US writings on the First Amendment – “Is uninhibited defamatory comment an unambiguous social good? That is, does it truly enhance public discourse?”  She draws attention to the fact that the decision promotes not only true but false statements of fact, statements which distort public debate. In fact, she suggests that the problem may go even deeper
it may involve not merely the promotion of false statements but also a more general tendency to sensationalize political discourse. … arguably, such expression – the obvious example here is speech concerning the private and sexual lives of political figures – distracts from and devalues the kind of discourse Sullivan meant to promote” (207)
Ms Kagan then raises the question as to whether Sullivan bears some responsibility for “increased press arrogance”. The review also criticises the extension of the Sullivan case into other areas, where the concept of “public figure” now extends, as she says to “Everyone the reader has heard of before and great many people he hasn’t” so that the vast majority of those likely attract media attention are treated as “public figures”. She concludes that
“The upshot … is that the constitutional standard established in Sullivan for a public official bringing a libel suit against critics of his official conduct today governs the bulk of defamation cases, at least against media defendants” (210)
She suggests that this result involves a “striking disregard” of the underpinnings of the doctrine in the Sullivan case. In its place she advances two other possible complementary approaches. First, limiting the actual malice doctrine to speech on matters of public importance or, second limit it to cases involving prominent and powerful individuals. This discussion shows that Ms Kagan brings a nuanced and principled approach to First Amendment cases generally and libel cases in particular. She will have an interesting contribution to make as the Ninth Justice of the Court.