I can't wait to read the transcript of the argument in Citizens United v. Federal Election Commission. It sounds as though Stewart may have made an advocacy blunder of historic proportion.
And how cool that Kindle got into the argument! I don't like my Kindle — because I need a sharper contrast (black on white) screen to feel good about it — but I love the technology of downloading books and want it to succeed. I would love to see this kind of technology unlock the Court's thinking and send it in the direction of greater freedom of speech.
ADDED: Here's the transcript (PDF). Justice Kennedy brings up the Kindle:
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?... 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?And here's the NYT report on the argument:
The [government's] lawyer, Malcolm L. Stewart, said Congress has the power to ban political books, signs and Internet videos, if they are paid for by corporations and distributed not long before an election.So then, the question, I presume, is: How badly will the government lose?
Mr. Stewart added that there was no difference in principle between the 90-minute documentary about Mrs. Clinton, “Hillary: The Movie,” and a 30-second television advertisement.
Justice Anthony M. Kennedy said the government’s uncompromising position could have dire consequences for the McCain-Feingold law.
“If we think that the application of this to a 90-minute film is unconstitutional,” Justice Kennedy said, “then the whole statute should fall under your view because there’s no distinction between the two?”
Mr. Stewart said the two kinds of communications should rise or fall together, so long as each satisfied a test set out by the court in a decision in 2007. That decision said restrictions in the McCain-Feingold law applied only to communications “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”...
Justice Samuel A. Alito Jr. asked... whether a campaign biography in book form could be banned. Mr. Stewart said yes, so long as it was paid for with a corporation’s general treasury money, as opposed to its political action committee.
“That’s pretty incredible,” Justice Alito said.
Justice Alito replaced Justice Sandra Day O’Connor, an author of the 5-to-4 decision upholding the McCain-Feingold law in 2003.
AND: From Dahlia Lithwick:
Oh, Malcolm Stewart. Malcolm Stewart. With your Macbeth-y first name and your Macbeth-ier last name. You did not just say the government might engage in a teensy little bit of judicious, narrowly tailored book-banning, did you?
... Stewart clarifies that it wouldn't be banned, but a corporation could be barred from using its general treasury funds to publish such a book and would be required to publish it through a PAC.
The chief justice seeks to clarify that this would be so even in a 500-page book with only one sentence that contained express advocacy. Stewart cheerfully agrees. The chief justice wonders whether this would apply even "to a sign held up in Lafayette Park saying vote for so-and-so." Stewart doesn't quite say no.