High Court Nominee Kagan Worked on Obscenity, Free Speech Cases

WASHINGTON — In a questionnaire to the Senate Judiciary Committee, U.S. Supreme Court nominee Elena Kagan said that she filed an amicus brief on behalf of a client that challenged an obscenity case.

She also revealed she has worked on numerous free speech cases.

Kagan confirmed that she once represented the Recording Industry Association of America while in private practice in the case of Luke Records Inc. vs. Navarro, an appeal heard by the 11th U.S. Circuit Court of Appeals relative to a district court's ruling that The 2 Live Crew's album "As Nasty As They Wanna Be" was obscene.

The hip-hop group hit the spotlight in 1989 with its album "As Nasty As They Wanna Be," which included the single "Me So Horny."

Florida's Broward County Sheriff Nick Navarro said it went too far with the lyrics, "I'm a freak in heat, a dog without warning. My appetite is sex, 'cause me so horny."

U.S. District Judge Jose Gonzalez agreed with Navarro that the song was obscene, and 2 Live Crew appealed.

Eventually, in 1992, a three-judge panel of the 11th Circuit heard the case and unanimously threw out the lower court's decision.

Kagan, in the questionnaire, said: "We filed an amicus brief in the 11th Circuit on behalf of the RIAA and numerous record companies, challenging the decision of the district court that a musical recording was obscene under the standard set forth by the Supreme Court in Miller vs. California. I drafted the brief in the case, which stressed the difficulty of holding music obscene under prevailing constitutional law."

The obscenity case paired up with Kagan's interests at the time.

"Between 1991 and 1995, I wrote primarily about issues of free expression," she said. "My major work at this time proposed a theory of the 1st Amendment focused on the nature of governmental motives underlying speech restrictions."

Kagan's other important cases dealt with free speech issues.

She represented the National Enquirer, which was accused of libel by "a person mistakenly identified in the publication as being [pentecostal minister] Jimmy Swaggart’s father... We eventually settled the case on terms favorable to our client."

She also worked in Byrd vs. Randi, in which "we represented defendant Montcalm Publishing. Randi made his mark by attacking spoon-bender Uri Geller's claims of having psychic powers. In the late 1980s, Randi called Byrd, an ally of Geller's who'd been put on probation for distributing sexually explicit material, a child molester.

Byrd sued for libel, naming Randi and the publishers of his allegations.

View Elena Kagan questionnaire