President Obama has nominated his Solicitor General, Elena Kagan, to be the next Supreme Court Justice. If confirmed, she would fill the seat being vacated by Justice John Paul Stevens upon his retirement at the end of the 2009/2010 term. Prior to her term as Solicitor General, Ms. Kagan, in her capacity as an academic and scholar, wrote influential pieces analyzing free speech jurisprudence. This report will discuss some of her most significant scholarly articles related to the First Amendment guarantee of freedom of speech. In her First Amendment scholarship, Ms. Kagan seems primarily concerned with developing an understanding of the evolution of the Supreme Court's First Amendment jurisprudence. Ms. Kagan does not appear to be arguing for a change in First Amendment analysis, or hinting towards how she believes cases would be better analyzed. Rather, Ms. Kagan argues that First Amendment case law is designed to prevent the government from enacting laws that are more likely to spring from improper motives. In another article, she offers suggestions for developing statutes that would be consonant with her understanding of First Amendment case law, and, therefore, more likely to be upheld as constitutional. It is unclear how this scholarship would apply or even if it would apply in the context of her position as a Supreme Court Justice, if she is confirmed. The most comprehensive article (over 100 pages) Ms. Kagan has written on the First Amendment is "Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine." This article argues that, at bottom, First Amendment doctrine is concerned with using objective tests to accomplish indirectly what it cannot do directly: revealing and rejecting ("flushing out" in Kagan's words) laws that may have, at their core, an improper government motive. She calls it the motive-based theory of First Amendment doctrine. Ms. Kagan hypothesizes that the Court cannot directly inquire into government motive to enact a particular law, because, among other things, the government is likely able to advance a legitimate interest in enacting virtually any law. Therefore, her argument continues, the Court has developed a schema that more closely scrutinizes laws that are at a greater risk of being improperly motivated in their enactment. And, as would be logically expected, the Court also scrutinizes less closely laws that carry less risk of improper motive. In the course of building this argument, Ms. Kagan analyzes many aspects of First Amendment law including campaign finance cases, indecency cases, fighting words cases, and the logic of the secondary effects doctrine. It is a complex article and every aspect of it cannot be addressed here. It is also important to note that the article was published in 1996. Many developments in First Amendment jurisprudence have occurred since then. To the extent possible, recent developments will be mentioned and compared to Ms. Kagan's arguments. As a result of the article's age, it is not clear how Ms. Kagan's view of First Amendment doctrine may have changed, if it has at all. Ms. Kagan begins her analysis by recognizing that the Supreme Court has said that "the purpose of Congress ... is not a basis for declaring a law unconstitutional." Courts instead are to focus on the effects of a particular speech restriction on First Amendment freedoms. Consequently, most analysis of First Amendment doctrine focuses on the potential effects of the restrictions to attempt to create coherent theories. Ms. Kagan believes these effects-focused theories are ultimately unsatisfying on their own to explain First Amendment doctrine. She argues instead that First Amendment doctrine, in spite of the Supreme Court's protestations, is primarily (though perhaps not solely) motivated by a desire to discover improper government motive. To explain why Ms. Kagan thinks her government motive theory is necessary to understand First Amendment doctrine, she begins with an example of a case that, in her opinion, could only make sense in the context of First Amendment doctrine if the Court is primarily concerned with improper government motive. In R.A.V. v. City of St. Paul , the Supreme Court invalidated a statute that prohibited fighting words based upon race, color, etc. The outcome of this case is strange, Ms. Kagan notes, because fighting words have been identified as a category of speech that falls outside the protections of the First Amendment and can be prohibited completely. Thus, under an effects-based theory, it likely would not matter constitutionally if only a subset of this category of speech was prohibited. The Court nonetheless invalidated the statute despite the fact that it punished only a subset of a category of unprotected speech. Ms. Kagan hypothesizes that this outcome can be best understood when viewed as an attempt by the Court to guard against laws that have a greater likelihood of being motivated by an improper purpose. Even within the spheres of unprotected speech, the Court will invalidate a statute if it appears that "official suppression of ideas [may be] afoot," because, under Ms. Kagan's theory, preventing the official suppression (or support) of particular ideas is the Court's primary concern. After explicating this example, Ms. Kagan embarks upon a methodical and thorough explanation and analysis of her theory. She does so by offering other holistic and widely accepted theories of First Amendment jurisprudence and attempting to fit aspects of First Amendment jurisprudence with those theories as rigorously as she attempts to fit those aspects of doctrine with the government motive theory. She ultimately concludes that, in general, her government motive theory does the best job of explaining First Amendment doctrine, but in arriving at that conclusion she makes numerous observations where the other First Amendment doctrine models may explain doctrine better than the theory she advances. Her analysis is rigorous, but she does not suggest that it is without its flaws. She acknowledges room for disagreement with her theory, but appears to believe, nonetheless, that she has devised the best explanation for then-current First Amendment jurisprudence possible. Ms. Kagan acknowledges that her attempt to reconcile First Amendment doctrine is hardly the first endeavor of its kind. Throughout her article, she compares how her improper motive theory fits with two other theories that attempt to explain First Amendment doctrine: the speaker-based theory and the audience-based theory. In contrast to the government motive or improper motive theory, which focuses on the possible underlying reasons for enacting a particular speech restriction, the speaker- and audience-based theories are effects based. In other words, they focus upon the effects speech restrictions have on the marketplace of ideas. The speaker-based theory hypothesizes that the primary value of the First Amendment resides in the conferral of expressive rights and opportunities on speakers. Therefore, laws under this theory should be evaluated based upon their effect on the ability of individuals to speak on particular subjects, from particular points of view, or in particular ways. "Quantity, in other words, is of the essence; as one proponent of this model has stated, First Amendment doctrine should concern itself with how much a law 'reduces the sum total of information or opinion disseminated.'" The audience-based theory focuses instead on the quality of the expressive arena in order to make sure that every idea worth expression enters the marketplace. The primary goal is to enable the audience to "arrive at truth and make wise decisions, especially about matters of public import." What matters under this theory, according to Alexander Meiklejohn, "is not that everyone shall speak, but that everything worth saying shall be said." These two theories are compared with Ms. Kagan's "government motive-based" theory, which claims that "what is essential is not the consequences of a regulation but the reasons that underlie it" and that where a law leaves too much room for impermissible underlying motivations, the court will be more likely to strike it down as a result of that suspicion. Assuming there is an attempt to flush out impermissible motives, which motives are impermissible? According to Ms. Kagan, there are likely four impermissible government motives of which the Court is suspicious. Ms. Kagan argues that the Court is suspicious of laws where it appears the government is restricting speech because it disagrees with the message being conveyed. Furthermore, the government should not be allowed to restrict speech because the ideas espoused threaten officials' self-interest. Logically consistent with the first and second suspicions, Ms. Kagan finds that the Court is suspicious of government attempts to provide advantages to favored ideas or ideas that would advance the self-interests of lawmakers. Lastly, the Court is suspicious of laws that would use the opinions of citizens to define what can and cannot be said. The basic inquiry into whether hostility towards particular ideas played a role in enacting any law turns on "whether the government would have treated identically ideas with which it disagreed, ideas with which it agreed, and ideas to which it was indifferent, to the extent that those ideas caused the same harms." This inquiry would permit regulations of speech seeking to address harms unrelated to ideology expressed and would command invalidation of laws that presumed a harm based upon the expression of ideas disfavored by the government, as, Ms. Kagan argues, First Amendment doctrine does. Ms. Kagan argues that all free speech cases dealing with restrictions on the speech of private persons (she leaves the discussion of government speech for another day) can be explained, at least in part, by the Court's indirect inquiry into whether the law was motivated by the above impermissible reasons. She acknowledges that in United States v. O'Brien , the Supreme Court said that the purpose of Congress (or any governmental body) "is not a basis for declaring legislation unconstitutional." However, rather than considering this a declaration that the Court does not inquire into governmental motive when conducting a free speech analysis, Ms. Kagan argues that O'Brien merely clarifies the means by which the inquiry is conducted. That is, because the Court cannot conduct an effective direct inquiry into government motive, the Court was forced to devise a doctrine (whether consciously or unconsciously) that conducted the inquiry indirectly.