...Kagan notes, however, that such “redistribution of speech” is not “itself an illegitimate end,” but that government may not restrict it to protect incumbent politicians or because it dislikes a particular speaker or a particular message.
She argued that government can restrict speech if it believes that speech might cause harm, either directly or by inciting others to do harm.In other words, if the government's "motive" is "pure" and intentions are "good," it can diss that pesky First Amendment all it likes.
Laws that only incidentally affect speech are constitutional, Kagan said, because the government’s motive in enacting them is not the restriction of First Amendment freedom but the prohibition of some other – unprotected – activity.
She argues in the piece that a law banning fires in public places is not unconstitutional, even if it means that protesters cannot burn flags in public. A law outlawing flag burning protests, however, would be, because the motive is to stop a particular protest...
No wonder Obama wants to annoint this chick. Her thinking is totally simpatico with his.