Tuesday, April 3, 2012

The Government Would Ban Books If It Could

Powerline has an interesting piece today on the prospects for a re-argument of the Obamacare case.  Steven Hayward points out that the Citizens United case had to be re-argued because Deputy Solicitor Malcolm Stewart could not answer the simple question of whether books could also be banned by the FEC (an amazing fact that I was completely unaware of since I wasn't following the case at the time).  I've excerpted the most interesting section of that oral argument below.  It's amazing how far the government is willing to go to achieve their ends:

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 preexisting 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 -

JUSTICE ALITO: Well, most publishers are corporations. And 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. But 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 -- the 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: 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 provision.

CHIEF JUSTICE ROBERTS: No, I'm talking about under the Constitution, what we've been discussing, if it's a book.

MR. STEWART: If it's a book and it is produced -- again, to leave -- to leave to one side the question of.

CHIEF JUSTICE ROBERTS: Right, right. Forget the -

MR. STEWART: -- possible media exemption, if you had Citizens United or General Motors using general treasury funds to publish a book that said at the outset, for instance, Hillary Clinton's election would be a disaster for this -

CHIEF JUSTICE ROBERTS: Take my hypothetical. It doesn't say at the outset. It funds -- here is -- whatever it is, this is a discussion of the American political system, and at the end it says vote for X.

MR. STEWART: Yes, our position would be that the corporation could be required to use PAC funds rather than general treasury funds.

CHIEF JUSTICE ROBERTS: And if they didn't, you could ban it?

MR. STEWART: If they didn't, we could prohibit the publication of the book using the corporate treasury funds.

JUSTICE BREYER: I wonder if that's -- I

mean, I take it the answer to the question, can the government ban labor unions from saying we love this person, the corporations, we love them, the environmentalists saying we love them, is of course the government can't ban that. The only question is, who's paying for it. And they can make a determination of how much money the payors can pay, but you can't ban it.

MR. STEWART: That's correct.

JUSTICE BREYER: All right. If that's correct, then I take it the interesting question here would be -- I don't know if it arises in this case -suppose there were a kind of campaign literature or -or advocacy that either a corporation had to pay for it, it couldn't pay for it through the PAC, because for some reason -- I don't know, the PAC -- and there's no other way of getting it to the public -- that would raise a Constitutional question, wouldn't it?

MR. STEWART: It would raise a Constitutional -

JUSTICE BREYER: Is that present in this case?

MR. STEWART: It's not present in this case. I don't think it would raise a difficult constitutional question because presumably if the reason the corporation couldn't do it through the PAC -- the only reason I could think of is that it couldn't find PAC-eligible donors who were willing to contribute for this speech. And if that's the case, the corporation would -- could still be forbidden to use its general treasury.

JUSTICE BREYER: I don't know about that. But I guess I would be worried if in fact there was some material that couldn't get through to the public. I would be very worried. But I don't think I have to worry about that in this case, do I?

MR. STEWART: That's correct, both because the question isn't presented here and because Congress -

CHIEF JUSTICE ROBERTS: No, but if we accept your constitutional argument, we're establishing a precedent that you yourself say would extend to banning the book, assuming a particular person pays for it.

MR. STEWART: I think the Court has already held in, both in Austin and in McConnell, that Congress can or that Congress or State legislatures can prohibit the use of corporate treasury funds for express advocacy.

CHIEF JUSTICE ROBERTS: To write a book, to pay for somebody to write a book?

MR. STEWART: Well, in MCFL, for instance, the communication was not a book, but it was a newsletter, it was written material; and the Court held this was express advocacy for which the use of corporate treasury funds would ordinarily be banned. It held that because of the distinctive characteristics of the particular corporation at issue in that case, MCFL was entitled to a constitutional exemption. But I think the clear thrust of MCFL is that the publication and dissemination of a newsletter containing express advocacy could ordinarily be banned with respect to the use of corporate treasury funds.

CHIEF JUSTICE ROBERTS: Not just a -- I suppose a sign held up in Lafayette Park saying vote for so and so. Under your theory of the Constitution, the prohibition of that would be constitutional?

MR. STEWART: Again, I do want to make clear that if by prohibition you mean ban on the use of corporate treasury funds, then, yes, I think it's absolutely clear under Austin, under McConnell that the use of corporate treasury funds could be banned if General Motors, for instance -

JUSTICE SCALIA: And -- and you -- you get around the fact that this would extend to any publishing corporation by saying that there is a media exemption because the Constitution guarantees not only freedom of speech but also of the press?


MR. STEWART: Well, there is always -

JUSTICE SCALIA: But does "the press" mean the media in that Constitutional provision? You think in 1791 there were -- there were people running around with fedoras that had press -- little press tickets in it, "Press"? Is that what "press" means in the Constitution? Doesn't it cover the Xerox machine? Doesn't it cover the right of any individual to -- to write, to publish?

MR. STEWART: Well, I think the difficult Constitutional question of whether the general restrictions on use of corporate treasury funds for electioneering can constitutionally be applied to media corporations has never had to be addressed because the statutes that this Court has reviewed have –

JUSTICE SCALIA: Well, I don't see any reason why it wouldn't. I'm saying there's no basis in the text of the Constitution for exempting press in the sense of, what, the Fifth Estate?

MR. STEWART: In -- in any event, the only question this Court would potentially need to decide in this case is whether the exemption for media companies creates a disuniformity that itself renders the statute unconstitutional, and the Court has already addressed that question in McConnell. The claim was made that because media corporations were exempt, there was inequality of treatment as between those and other corporations. And Congress said no, Congress -- I mean, this Court said no, Congress can protect the interests of the media and of the public in receiving information by drawing that line. With respect to your -

JUSTICE SOUTER: To point out how far your argument would go, what if a labor union paid and offered to write a book advocating the election of A or the defeat of B? And after the manuscript was prepared, they then went to a commercial publisher, and they go to Random House. Random House said, yes, we will publish that. Can the distribution of that be in effect subject to the electioneering ban because of the initial labor union investment?

MR. STEWART: Well, exactly what the remedy would be, whether there would be a basis for suppressing the distribution of the book, I'm not sure. I think it's clear under -

JUSTICE SOUTER: Well, does it come within electioneering because of the initial subvention to the author?

MR. STEWART: It wouldn't be an electioneering communication under BCRA because BCRA wouldn't apply to the print media. Now, it would potentially be covered by the -

JUSTICE SOUTER: We're -- we're talking about how far the constitutional ban could go, and we're talking about books.

MR. STEWART: Well, I -- we would certainly take the position that if the labor union used its treasury funds to pay an author to produce a book that would constitute express advocacy, that that -

JUSTICE SOUTER: And the book was then taken over as a commercial venture by Random House?

MR. STEWART: The labor union's conduct would be prohibited. The question of whether the book that had already been -

JUSTICE SOUTER: No, but prohibition only comes when we get to the electioneering stage.

MR. STEWART: That's correct.


MR. STEWART: The question whether the -

JUSTICE SOUTER: So for the -- for the labor union simply to -- to hire -- is there -- is there an outright violation when the labor union -- I guess this is a statutory question: Is there an outright violation when the labor union comes up with the original subvention? MR. STEWART: I guess I would have to study the Federal Election Campaign Act provisions more closely to see whether they -

JUSTICE SOUTER: Let's assume for the sake of argument that they would not be. The subvention is made, the manuscript is prepared, Random House then publishes it, and there is a distribution within the -what is it -- the 60-day period. Is the -- is the original subvention (a) enough to bring it within the prohibition on the electioneering communication, and (b) is that constitutional?

MR. STEWART: Well, again, it wouldn't qualify as an electioneering communication under BCRA because that statutory definition only applies -

JUSTICE SOUTER: You're -- you're right. I stand corrected. If the statute covered that as well, if the statute covered the book as well.

MR. STEWART: I think the use of labor union funds, as part of the overall enterprise of writing and then publishing the book, would be covered.

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