Perhaps the most revealing exposition of Ms. Kagan's views came in a 49-page essay she wrote in 1992 for the Supreme Court Review, titled "The Changing Face of First Amendment Neutrality." In this paper, she discussed two "free speech" cases at great length. In one of them, R.A.V. v. St. Paul, the Supreme Court struck down a law in Minnesota that would have banned certain forms of "hate speech," which she described as a subset of the sorts of "fighting words" that do not enjoy automatic First Amendment protection. "May the government then permit some but not all fighting words?" she asked, "or is it constitutionally constrained from selectively doling out this favor?"

Yes, you read that right. Ms. Kagan was saying that it's not the citizenry that presumptively enjoys speech rights, but the government that doles out those rights as a "favor."