And she'll certainly get her chance to split those hairs, if she is confirmed to the Supreme Court. From her days as U.S. Solicitor General, we get this gem:
....consider this quote dug up by the First Amendment Center's David L. Hudson, who found it in a government brief signed by Kagan in United States v Stevens: “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.”
The case concerned a statute that made it criiminally unlawful to depict animal cruelty. The Court rejected Kagan's reasoning, but had the justices accepted her assertion, it would have effectively repealed the First Amendment's protection of speech and replaced it by granting government the authority to decide what speech should be permitted.
Ah, but now she'll be part of the Court, and the next time a similar case comes up, we'll know that she rule in favor of giving the government the power to decide what speech is free and what speech is, shall we say, "actionable".
And we already know that Kagan is, if nothing else, a political animal, eager to please her bosses, as well as those who can continue to advance her career goals. So...exactly what tyep of speech would become a danger to "societal" values, Elena? Perhaps...the daily voice of a certain talk-show host who rubs the president the wrong way? The carrying of a certain yellow flag embossed with a rattlesnake? Or does the vocal criticism of a certain egomanical president become, as some in the media have suggestion, "seditious" and thus dangerous?
That will be up to Elena to decide for us, should she be granted her lifetime appointment to the high court. And of course, there is no doubt about who's judgement she will defer to...