"If there is an 'overabundance' of an idea in the absence of direct governmental action -- which there well might be when compared with some ideal state of public debate -- then action disfavoring that idea might 'un-skew,' rather than skew, public discourse," Kagan wrote.
Instead, the Supreme Court should focus on whether a speaker's message is harming the public, argued Kagan in her article.
While Kagan does not offer an exhaustive definition of 'harm,' she does offer examples of speech that may be regulated, such as incitement to violence, hate-speech, threatening or "fighting" words.
The government, she concludes, may not express its disfavor with an opinion or speaker by burdening them with restrictions or prohibitions, unless it can show that their speech is causing some type of public harm.
"The doctrine of impermissible motive, viewed in this light, holds that the government may not signify disrespect for certain ideas and respect for others through burdens on expression," Kagan wrote. "This does not mean that the government may never subject particular ideas to disadvantage. The government indeed may do so, if acting upon neutral, harm-based reasons."
Translation: "Shut the frack up and pay your fracking taxes, peon boy."
Not only is this woman a full-on statist, she's also a moron. "Harm based reasons", forsooth. The mind reels.
Section 13 Canadian Human Rights Commissions anyone? You Americans better get the hell out there and make sure this broad never sees the court, or you are going to have DemocRat apparatchiki reading your frackin' mail by 2012. Nobody will have a job, and you won't be able to say jack about it. Mark me, its going to happen.