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, Volokh.com: “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?
