Freedom to Publish Preserved

By January 22, 2010Briefly Legal

On the Mark Levin radio program last evening and then in today’s Washington Post, David Bossie of Citizens United drew attention to the Supreme Court’s March, 2009, oral arguments in Citizens United v. FEC. In response to questioning from the justices, Deputy Solicitor General Malcolm L. Stewart said that federal law, McCain-Feingold, allowed the government to limit or even ban books as well as electronic media. At that point, Bossie said he thought he had won his free speech case.

The Wall Street Journal’s lead editorial today, “A Free Speech Landmark,” also cited the exchange as a critical moment in the court’s consideratin. Below is the exchange, starting on page 21 of the transcript.

But first, another important point made clearly by Ilya Somin at the legal blog, “People Organized as Corporations are People Too.”

Now the transcript:

JUSTICE ALITO: Do you think the Constitution required Congress to draw the line where it did, limiting this to broadcast and cable and so forth? What’s your answer to Mr. Olson’s point that there isn’t any constitutional difference between the distribution of this movie on video demand and providing access on the Internet, providing DVDs, either through a commercial service or maybe in a public library, providing the same thing in a book? Would the Constitution permit the restriction of all of those as well?
MR. STEWART: I think the — the Constitution would have permitted Congress to apply the electioneering communication restrictions to the extent that they were otherwise constitutional under Wisconsin Right to Life. Those could have been applied to additional media as well. And it’s worth remembering that the pre-existing Federal Election Campaign Act restrictions on corporate electioneering which have been limited by this Court’s decisions to express advocacy –
JUSTICE ALITO: That’s pretty incredible. You think that if — if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?

MR. STEWART: I’m not saying it could be banned. I’m saying that Congress could prohibit the use of corporate treasury funds and could require a corporation to publish it using its PAC.
JUSTICE ALITO: Well, most publishers are corporations. And a — a publisher that is a corporation could be prohibited from selling a book?
MR. STEWART: Well, of course, the statute contains its own media exemption or media –
JUSTICE ALITO: I’m not asking what the statute says. The government’s position is that the First Amendment allows the banning of a book if it’s published by a corporation?
MR. STEWART: Because the First Amendment refers both to freedom of speech and of the press, there would be a potential argument that media corporations, the institutional press, would have a greater First Amendment right. That question is obviously not presented here. The — the other two things –
JUSTICE KENNEDY: Well, suppose it were an advocacy organization that had a book. Your position is that under the Constitution, the advertising for this book or the sale for the book itself could be prohibited within the 60/90-day period — the 60/30-day period?
MR. STEWART: If the book contained the functional equivalent of express advocacy. That is, if it was subject to no reasonable interpretation –
JUSTICE KENNEDY: And I suppose it could even — is it the Kindle where you can read a book? I take it that’s from a satellite. So the existing statute would probably prohibit that under your view?
MR. STEWART: Well, the statute applies to cable, satellite, and broadcast communications. And the Court in McConnell has addressed the –
JUSTICE KENNEDY: Just to make it clear, it’s the government’s position that under the statute, if this Kindle device where you can read a book which is campaign advocacy, within the 60/30-day period, if it comes from a satellite, it’s under — it can be prohibited under the Constitution and perhaps under this statute?
MR. STEWART: It — it can’t be prohibited, but a corporation could be barred from using its general treasury funds to publish the book and could be required to use — to raise funds to publish the book using its PAC.
CHIEF JUSTICE ROBERTS: If it has one name, one use of the candidate’s name, it would be covered, correct?
MR. STEWART: That’s correct.
CHIEF JUSTICE ROBERTS: If it’s a 500-page book, and at the end it says, and so vote for X, the government could ban that?
MR. STEWART: Well, if it says vote for X, it would be express advocacy and it would be covered by the pre-existing Federal Election Campaign Act provisions.



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