But the big issue they should be asking about is Kagan's views on freedom of speech. Crucial warnings on this issue are raised by an article Kagan wrote for the University of Chicago Law Review in the mid-1990s. The article is long and verbose—reading it reminded me why I never returned to academia after my own stint at the University of Chicago—but key quotes on this issue are singled out here.

The phrase that should really terrify you is this one: "redistribution of speech opportunities." It sums up, in one phrase, the suicide of liberalism, its degeneration from a supposed defense of liberty to a rationalization for tyranny.

Old-fashioned liberalism died because it couldn't maintain the fiction that it was against property rights but in favor of "human rights." In the end, as we're seeing, the political faction that advocates redistribution of wealth cannot restrain itself from advocating "redistribution of speech."

They're already working on it. Leftist catchphrases that pop up in Kagan's article include the idea that loud advocates of one view shouldn't be permitted to "drown out" the expression of other views, that government should adopt policies to encourage a "diversity" of views, and that property rights can "skew" the marketplace for ideas, so that government regulation would merely "unskew" it. Anyone care to guess whether all of this could be used against, say Rupert Murdoch and Fox News, or against Rush Limbaugh? Does this mean that Kagan would regard as constitutional the "Fairness Doctrine," which is designed to quash conservative talk radio, or that she would uphold the DISCLOSE Act, a patchwork of regulations that imposes a selective burden of red tape on the Democrats' political opponents? Who knows, once we start "redistributing speech"?

There is one aspect of the conservative coverage on this issue that is not quite right. Elena Kagan does not "argue for" redistribution of speech in her law review article. In fact, she doesn't really argue for anything. Her article is a very typical product of a modern legal academic, especially an ambitious legal academic: it presents itself as an impartial review of arguments made by others, while making no real argument of its own.

Like I said, the article is a good reminder of everything that's wrong with academia. It's written in pompous and self-consciously over-formal academ-ese (phrases like "the locus of decision-making authority in our political system" instead of "who decides"), which requires endless paragraphs of parsing to say the simplest things. It's a style meant to give a pretense of substance and importance and thoughtfulness, without ever expressing an actual new or interesting idea. People build whole careers on this sort of thing—very successful ones, as Kagan demonstrates—and academia is full of these high-achieving third-rate thinkers. Out in the supposedly "lowbrow" real world, the standards are much more demanding: the kind of stuff Kagan writes would get tuned out in five seconds if she tried posting it to a blog, where you actually have to have something interesting to say if you want people to read it.

But what is important is that beneath all of the crushingly boring pretence is a thoroughgoing pragmatism that is never argued for because it is the air modern legal academics breathe.

Freedom of speech is not an absolute principle grounded in the requirements of human nature. When the Constitution says "Congress shall make no law…abridging the freedom of speech, or of the press," "no" doesn't really mean "no." The First Amendment is just a suggestion, a vague rule of thumb, to be "interpreted" according to a "balancing" of government interests and a consideration of the "societal costs" of private speech, so that speech ends up being divided into myriad "categories"—"commercial speech," "hate speech," "campaign speech," and so on—each of which is subject to its own special set of controls.

This profusion of categories, though, is precisely what is breaking down. Decades ago, when the left first started pushing for restrictions on "commercial speech," they assured us that this was only about economics and money and material factors, and that it would not affect political speech. But all speech involves economic and material factors. As Ronald Reagan knew, somebody has the pay for the microphone. So by "only" trying to regulate money, the left ends up regulating speech. It has reached the point where Elena Kagan, as solicitor general, argued that campaign finance laws could be used to ban political pamphlets, while one of her subordinates suggested they could be used to ban books.

Ayn Rand once contemptuously described the left's attempt at a barrier between regulation of economics and regulation of speech: "The liberals see man as a soul free-wheeling to the farthest reaches of the universe—but wearing chains from nose to toes when he crosses the street to buy a loaf of bread." It is obvious that such a distinction will not last, and has not lasted. We have now reached the point where the attempt to regulate our economic lives has turned into an attempt to regulate what we can and cannot say and write during the period before an election, precisely when such speech matters most.

There is only one simple issue at the root of all discussions of the First Amendment and all interpretations of how to apply it. That issue is: force versus the mind. As John Locke—the philosophical father of freedom of speech—put it in his Letter Concerning Toleration, "the care of souls cannot belong to the civil magistrate, because his power consists only in outward force…. And such is the nature of the understanding, that it cannot be compelled to the belief of anything by outward force…. It is only light and evidence that can work a change in men's opinions; which light can in no manner proceed from corporal sufferings, or any other outward penalties."