Citizens United, Elena Kagan, and Banning Books

Published Fri, May 7 2010 10:36 AM

Former FEC Chairman Brad Smith has a great piece in the American Spectator discussing the scope and ramifications of Citizens United v. FEC.

 

Citizens United We Stand

By Bradley A. Smith from the May 2010 issue

 

March 24, 2009, was a turning point in the long-running battle to restrict political speech, aka "campaign finance reform." On that day, the Supreme Court heard oral argument in Citizens United v. Federal Election Commission, in which the conservative activist group Citizens United challenged the provisions of the McCain-Feingold law that had prohibited it from airing a documentary film, Hillary: The Movie, through video on demand within 30 days of any 2008 Democratic presidential primary.

 

In the course of the argument, Deputy Solicitor General Malcolm Stewart, an experienced Supreme Court litigator, argued that a 1990 precedent, Austin v. Michigan Chamber of Commerce, gave the government the power to limit any political communication funded by a corporation, even a nonprofit such as Citizens United. Justice Samuel Alito asked Stewart if that power would extend to censoring political books published by corporations. Stewart responded -- consistent with the government's position at all stages of the case -- that yes, it would. There was an audible hush -- if such a thing is possible -- in the court. Then Justice Alito, appearing to speak for the room, merely said, "I find that pretty incredible."

 

Incredible or not, that was, and had been for many years, the position of the U.S. government. But until that moment, it seemed to have never quite sunken in with the justices. Americans are willing to accept far more abridgements of free speech than we sometimes like to believe, but the idea of banning books strikes an emotional chord that something described simply as "prohibitions and limits on campaign spending" does not. Americans may not always live up to the Bill of Rights, but Americans do not ban books. A stunned Court eventually asked the parties to reargue the case, to consider whether Austin should be overruled.

 

On reargument last September, Solicitor General Elena Kagan tried to control the damage, arguing that the government never actually had tried to censor books, even as she reaffirmed its claimed authority to do just that. She also stated that "pamphlets," unlike books, were clearly fair game for government censorship.

 

Read the full article here.

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