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Supreme Court nominee Elena Kagan said the high court should be focused on ferreting
out improper governmental motives when deciding First Amendment cases, arguing that the government’s
reasons for restricting free speech were what mattered most and not necessarily the effect
of those restrictions on speech.
What I have argued in this Article is that most of First Amendment doctrine constitutes
a highly, but necessarily, complexscheme for ascertaining the governmental purposes underlying
regulations of speech. The Court could not-and knows it could not-discover these motives
through direct inquiry; in all but the most unusual case, the government could offer a
law thus have a rationale and purpose not immediately apparent;
Amendment.