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Elena Kagan helped defend RIAA from Jack Thompson

from – In her lengthy questionnaire (PDF) for the Senate Judiciary Committee, new Supreme Court nominee Elena Kagan discussed the “ten (10) most significant litigated matters which you personally handled.” They’re an odd bunch of cases, involving the National Enquirer, Uri Geller, and the RIAA, for whom Kagan worked on an amicus brief in the notorious 2 Live Crew rap obscenity trial.

Kagan describes her work for the RIAA this way: “We filed an amicus brief in the US Court of Appeals for the Eleventh Circuit on behalf of the Recording Industry Association of America 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 v. California. I drafted the brief in the case, which stressed the difficulty of holding music obscene under prevailing constitutional law.”

This nationally known case involved none other than Jack Thompson, the now-disbarred-in-Florida lawyer who has spent years going after violent video games.

Back in 1989, Thompson led an “obscenity” charge against 2 Live Crew’s album As Nasty As They Wanna Be, and the state eventually charged a music store with obscenity for selling it. The album saw tremendous sales thanks to the controversy, though a federal judge did declare the album obscene. Kagan got involved when the case was appealed, as the RIAA wanted to make sure its products weren’t in the habit of being censored. The recording industry won the appeal, and the Supreme Court refused to hear it further.

The case fit with Kagan’s interests at the time. As she notes in the questionnaire, “Between 1991 and 1995, I wrote primarily about issues of free expression. My major work at this time proposed a theory of the First Amendment focused on the nature of governmental motives underlying speech restrictions.”

Several of Kagan’s other important cases dealt with speech issues. She represented the National Enquirer, a sensational tabloid that was accused of libel by “a person mistakenly identified in the publication as being [pentecostal minister] Jimmy Swaggert’s father… We eventually settled the case on terms favorable to our client.”

Then there was Byrd v. Randi, in which “we represented defendant Montcalm Publishing Corp. in a libel action arising from an allegation that the plaintiff was in prison for child molestation.” McClatchy Newspapers sums up the case:

Sometimes, Kagan played a more prominent role, as in a dispute that pitted “The Amazing Randi” against Eldon Byrd.

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.

Representing Montcalm Publishing, the publisher of The Twilight Zone magazine, Kagan drafted motions and argued before the Baltimore-based trial judge. She stressed broad First Amendment principles, such as when an individual’s reputation already was tainted enough to be libel-proof.

Standing up for 2 Live Crew, the National Enquirer, and The Amazing Randi—Kagan certainly worked on some colorful cases in her early years as a lawyer, though her own involvement seems limited to discovering, writing, and researching. She soon entered academia, moving to the University of Chicago and then to Harvard Law, where she served as dean and oversaw a whole new host of colorful personalities, including Jonathan Zittrain, Lawrence Lessig, and Charles Nesson.


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