March 24, 2009

"When the argument turned to such First Amendment horrors as banning books..."

"... banning Internet expression, and banning even Amazon’s book-downloading technology, Kindle, the members of the Court seemed instantly to recoil from the sweep of arguments made by Deputy Solicitor General Malcolm L. Stewart."

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.

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.
So then, the question, I presume, is: How badly will the government lose?

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.


save_the_rustbelt said...

I'm a major advocate of free speech (being at times a perfesser and writer) but I was taken aback by a conversation this week when a librarian told me that if someone has a right to view pornography the taxpayers have an obligation to make it available through the public library.


I will protect free speech, but do I have to buy you a microphone?

Hector Owen said...

That librarian is an idiot. (Was he/she actually a librarian, a person with administrative responsibility? Or a shelver or checkout assistant?) Libraries always are selective in choosing what goes into their collections.

This, from Justice Kennedy in the linked article, was a start in a good direction: "If we think the application [of Section 203] to a 90-minute film is protected, and you say there is no difference [from a short ad], the whole statute might be declared unconstitutional." As it should have been the first time around.

hawkeyedjb said...

I'm disgusted that we're even talking about an "exception to federal power to regulate what advocacy groups can say during national political campaigns." I cling to my simple-minded belief that citizens don't need any damned permission from the government to say what they want during a political campaign. I rely on the constitution, which contains the five most beautiful words in the English language: "Congress shall make no law."

Oh yes, and on the late, great Oriana Fallaci: "You go fuck yourself. I write what I want."

John Thacker said...

I can't help but wonder if the pro-regulation "liberal" Justices would feel differently if the film on trial were not an anti-Hillary documentary, but one of Michael Moore's pieces.

traditionalguy said...

Free Speech is only a virtue in a Democratic election based political system. The European aristocratic tradition always sees only a possibility of a bad result from allowing any rabble rousing speech at the time of the Government's pretense at holding and election. When will the common folks learn who is entitled to free speech and who is not?

Larry J said...

Every time I hear someone advocating restrictions on campaign speech, I have to wonder what part of "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances" they don't understand.

Joe said...

The only reason this is even a case is the supreme court fails to understand that the first amendment applies to exactly the kind of speech that Congress is suppressing. This is a controversy of their own making due to playing politics with the constitution.

Beth said...

If anyone could point me to a readable quick read on the First Amendment and speech, aimed at laypeople, I'd appreciate it. I want to be an effective advocate for free speech on my campus, and I label myself a First Amendment feminist (that came about from the 1980s anti-porn feminist broughaha), but I need to be able to address misconceptions about what is and is not carved out from the amendment and considered illegal speech. I guess there's always wikipedia, but if anyone has a good Free Speech for Dummies reference, by all means, send it my way.

Ignorance is Bliss said...

...but if anyone has a good Free Speech for Dummies reference...

There seems to be a lot of it here

Sorry, I couldn't resist.

hat said...

the iphone/ Ipod touch kindle app has really good contrast and brightness, though obviously the battery doesn't last as long etc.

Anonymous said...
This comment has been removed by the author.
Anonymous said...

I can't help but wonder if the pro-regulation "liberal" Justices would feel differently if the film on trial were not an anti-Hillary documentary, but one of Michael Moore's pieces.

It seems that their line would prohibit any film where the subject matter dealt directly with the person but allow a film where the subject matter dealt with a political positions that the person holds.

"We can't tell you about Ms. C, but we can tell you about the idiocy of having any position other than what Ms. C has."

Yet, without being able to explore Ms. C, how can we know the process and path by which Ms. C formed her touted opinion? Was is the product of careful study and analysis, or was it the product of a back room pay-off, or of stock ownership in an interested company.

Isn't it relevent that Al Gore is a shareholder in a number of firms that stand to gain directly from the very government carbon emission laws that he is plugging? Yet today the government argued that you can't say that about Al Gore in a film; you can only say that we're destroying our planet with CO2.

rhhardin said...

It would be more interesting if it involved some screed deploring the state of the Supreme Court.

The opportunities for hypotheticals in the oral arguments would be superb.

rhhardin said...

McCain on preferring a non-corrupt government to free speech, real audio here, Apr 28, 2006.

He spent some time explaining what he meant for a week after that.

Richard Dolan said...

It was an interesting argument, but I wouldn't be so hard on the Asst SG who argued for the gov't. His basic point was that in prior SCOTUS cases, the Court recognized that electioneering is defined as advocating a vote for or against a specific candidate. The only other criterion that determines when the prohibitions on financing kick in is whether the electioneering occurs within 60 days of a federal election. This 90-minute film was not subtle in urging a vote against Hillary, and was disseminated during the prohibited period. The Asst SG noted that no communication is "banned" per se but instead becomes subject to limitations on the sources that can be used to fund it. Meaning that, for communications subject to the BCRA, no general union or corporate funds can be used to make the communication but permitting funding with PAC or personal funds.

Can't say I saw any "advocacy blunder of historic proportions." Instead, the whole creaky apparatus of federal election regulation was on full display, and there was no way that any kind of advocacy was going to smooth over that creakiness. What struck me as odd about the whole thing is the form in which the communication is made -- 30 second ad vs. 90 minute infomercial vs. book formatted screed -- got everyone to sit up and take notice.

Fr Martin Fox said...

As Hawkeye and Larry said already:

What part of (I'll say it real slowly):


don't they get?

Revenant said...

What part of (I'll say it real slowly): "Congress shall make no law" don't they get?

That part is perfectly clear. What isn't clear is the next bit: "abridging the freedom of speech". What's covered by "freedom of speech"? It didn't, and doesn't, mean the freedom to say absolutely anything you want; libel, slander, and fraud were never protected nor intended to be, for example.

Anonymous said...

Beth: Go to this site:

Anonymous said...

P.S. More specifically, go here:

Beth said...

Thanks muchos, Machos.

Fr Martin Fox said...


OK, fair enough. Then let me put it this way: if "speech" doesn't include criticism of, and words involved in unseating, the people who write the laws defining speech, then we have a problem.

Revenant said...

No argument there.

Jacob said...

The transcript is up here.

Chris M. said...

Read John Milton's Areopagitica. It is the best thing I have ever seen on freedom of expression. Milton clearly explains why a healthy political life is impossible with censorship. And it is written in beautiful, slightly antique English prose that is a joy to read.

Kevin said...

FWIW, Kindle doesn't use satellites, whatever that's all about. It uses Sprint's cellular network.

John Cunningham said...

McCain-Feingold is a monstrosity, I can only hope the SupCt has the sense to rule out the entire thing. Censorship of dissenting views is far along in Europe, we could well go the same way here.
on another issue, MAJOR CONGRATS TO ANN AND LARRY!! I thought you guys were sweet on each other at Arnold's, but this is even better.

JorgXMcKie said...

Hmmmm. Under Stewart's criteria, wouldn't the govt have to prohibit articles like the Iraq Excessive Deaths hit piece released just prior to the 2004 elections? It was basically paid for by George Soros. (Or, as a "Friend of 'Bama does he get a free pass?)

Censors are censors. There are remedies for libel and slander and fraud. If politicians think they've been wronged, they can sue.

JohnSteele said...

Why is the assumption that the lawyer necessarily blew it? Is there any chance he was just showing the justices the implications of their prior decisions? That the government lawyers internally said, "well, this mess is the result of Congress and the court, so we'll just argue the statute straight-up as written and if the court doesn't like what it means then the court can get it right the second time"? The argument wasn't necessarily a blunder. It may have been well thought out.

Anonymous said...

Maybe the government wants to lose.