Miranda? We can change that!

Emptywheel wonders why, when the latest failed terror attack suggests once again that providing terrorists with their civil rights does not cause the sky to crumble and fall, Eric Holder goes on TV to offer to create a War On Terror Exception to Miranda.

It's a damn good question.

I had thought that, by this point in the Obama administration, the president and his cronies would have figured out that they are not going to win over any wingnuts with concessions and compromises. Perhaps they have access to some polling data showing that independents overwhelmingly favor ditching Miranda in the case of brown-skinned Muslims who try to kill people; but that would not impress me with anything other than Obama's incompetent handling of the bully pulpit.

But perhaps it's just part of a trend:

In U.S. v. Stevens, the animal-cruelty video case, Kagan argued that the First Amendment allows for a cost-benefit analysis of speech content:

Where the First Amendment value of the speech is “clearly outweighed” by its societal costs, the speech may be prohibited on its content.

The Court’s 8-1 majority opinion against the the administration (and the law in question), written by Roberts and signed by Ginsburg, Breyer, Stevens, and Sotomayor among others, noted the following after quoting that passage from Kagan’s brief:

As a free-floating test for First Amendment coverage, that sentence is startling and dangerous.

The solicitor general of the United States, folks: no First Amendment where its "societal costs" are "clearly" greater than the value of the speech protected. God, I miss Ted Olson.

If Kagan is indeed the nominee, that will be further circumstantial evidence that Obama recognizes no principles, only opportunities for compromise.

... And Kagan it is. Quelle surprise.