What's So Special About Paper?

Jacob Sullum | September 10, 2009

Yesterday, based on press reports, I said Solicitor General Elena Kagan, during the second round of oral arguments in Citizens United v. FEC, had "repudiated" the government's position that "the Constitution allows Congress to ban books published by corporations" if they support or oppose candidates for federal office and come out close to an election. Reading the transcript (PDF), I see that's not quite right. Although Kagan elicited laughter by declaring that "the government's answer" to the question of whether the First Amendment allows it to ban books "has changed," she still did not actually rule out that possibility.

Kagan noted, first of all, that the ban on "electioneering communications" imposed by the Bipartisan Campaign Reform Act (BCRA)—the provision cited by the Federal Election Commission (FEC) when it blocked pay-per-view distribution of Hillary: The Movie—"does not apply to books." No one claimed it did, of course; the question was whether Congress could extend the ban to print without violating the First Amendment, and Deputy Solicitor General Malcolm Stewart's answer was yes. Next Kagan noted that the pre-existing ban on "express advocacy" by corporations "does, on its face, apply to other media." She sought to reassure the justices about the vulnerability of books by noting that "the FEC has never applied this statute to a book." This was the comment that provoked Chief Justice John Roberts to say, "We don't put our First Amendment rights in the hands of FEC bureaucrats." It would have been more accurate to say "we shouldn't put our First Amendment rights in the hands of FEC bureaucrats," since this case shows that currently we do.

Kagan also said "the government's view is that although [the express advocacy ban] does cover full-length books...there would be [a] quite good as-applied challenge to any attempt to apply [the ban] in that context." In other words, anyone whose book was censored under this provision could argue, just as Citizens United did with respect to its movie, that in this particular case the FEC had gone too far. But that is quite different from agreeing that the First Amendment bars the government from banning books based on their political content. The government's current position, as tweaked by Kagan, seems to be that the constitutionality of such a ban depends on the details of the case.

This Cato Institute video, based on the first round of arguments in Citizens United, highlights the lengths to which the government has been driven in defending BCRA's speech restrictions. It reminded me of a detail I had forgotten: Justice Anthony Kennedy suggested (PDF) that books are already covered by the electioneering communications ban, which applies to messages carried by satellite as well as cable and broadcasting, when they are read on devices like Amazon's Kindle. Stewart agreed.

Last week I noted the Institute for Justice's list of books that might have been banned for being too political. Damon Root and I rooted for Citizens United here and here.

Comments

Joe M|9.10.09 @ 6:27PM|#

I was arguing with a coworker, a conservative, who thinks that we should publicly fund all campaigns, and make it illegal to contribute money. Instead, everyone will be allowed only to campaign door-to-door with flyers.

No radio or TV ads allowed. Youtube videos would be okay, as long as no one was paid to make them. You could drive people around in your van to neighbors for campaigning, but you couldn't rent a bus. However, if you OWNED a bus, that would apparently be okay.

Also, newspaper editorials and talk radio hosts giving their opinions would be okay, because they do that year-round and aren't being paid expressly for the purpose of endorsing a particular candidate in a particular election. So Rush and the NYT have nothing to worry about.

Yes, my head was spinning too.

Craig|9.10.09 @ 6:27PM|#

If political advocacy by corporations can be regulated, why are newsprint publishing corporations exempt? They routinely endorse candidates right before elections.

Paul|9.10.09 @ 6:41PM|#

"We don't put our First Amendment rights in the hands of FEC bureaucrats." It would have been more accurate to say "we shouldn't put our First Amendment rights in the hands of FEC bureaucrats," since this case shows that currently we do.

Snap. When was the last time we heard such a direct repudiation of the oligarchy of bureaucrats our country has become?

Thank you justice Roberts.

But unfortunately, Jacob Sullum's dead on correct: We already do, and we need to turn this shit around... now.

Paul|9.10.09 @ 6:44PM|#

If political advocacy by corporations can be regulated, why are newsprint publishing corporations exempt? They routinely endorse candidates right before elections.

Not only should they... they must be regulated. Especially when a foreign interest owns a newsprint operation. Then and only then would the press wake up to this issue.

The stark violation of the 1st amendment which is McCain-Feingold must be wholly reversed.

jester|9.10.09 @ 6:54PM|#

To live outside the law you must be honest.

-Dylan

To live inside the law, you make laws that are incorrigible, and then attack your opponents as being opposed to the rule of law.

The first ammendment frees us from that bullshit. There are some laws that are inherently oxymoronically at odds with justice. Supreme Court's duty is to get them of the books.

This is a good one to get off the books.

BeesInTheBrain|9.10.09 @ 7:37PM|#

It's really simple. If the government can constitutionally ban "political" speech, one of the most protected forms of speech, because the "speaker" is a corporation, then nothing is to stop it from banning other forms of "speech" that currently have some form of protection.

Hobo Chang Ba|9.10.09 @ 10:05PM|#

The 1st Amendment does not distinguish between individuals vs. organizations for who has freedom of speech. Even assuming however this right is only for individuals, how do we draw a line between a "press" organization which obviously has protections under the 1st amendment, and a corporation publicizing political views (which could likewise be considered "press" considering that the basis for this movie is publishing factual information that could affect voter decisionmaking?)

In the age of politicized opinion-based media of Olbermann and O'Reilly, is there even a line here that can be rationally drawn that divides one corporation for the other and thus presupposes the latter does not have freedom of the press?

|9.10.09 @ 11:18PM|#

"To live outside the law you must be honest."

Thanks, Bob, that'll give me great comfort next time I think about the guy who put a knife at my throat for the $50 I had in my pocket. At least I was robbed by an honest man.

JB|9.10.09 @ 11:23PM|#

These idiots think the Constitution allows them to ban books?

Time to buy more guns, ammo, and things that can be made to explode.

|9.11.09 @ 12:21AM|#

I think it was Lenny Bruce that said if you can't say "fuck," you can't say "fuck the government." Now we can say "fuck" all we want, we just can't say "the government."

|9.11.09 @ 1:26AM|#

""Time to buy more guns, ammo, and things that can be made to explode.""

1- It has been that time for a while JB
2- It is always that time JB

DJF|9.11.09 @ 4:20AM|#

Since only people have rights, what part of the corporation has this free speech right, the owners, the management, the employees?

How about instead we get rid of all corporations which are nothing but government sanctioned cartels which are given special limited liability protection and instead say that only people can speak. That means getting rid of the NYT's corporations, the NBC and Fox corporations, the PBS corporations and all the rest.

People on the other hand have total free speech rights, but only as individuals who take full responsibly for what they say. They can organize together but only as groups of individuals who don't hide behind a government sanctioned wall of the corporation

!|9.11.09 @ 9:05AM|#

If political advocacy by corporations can be regulated, why are newsprint publishing corporations exempt? They routinely endorse candidates right before elections.

Because that is the purpose for which they were created?

|9.11.09 @ 9:18AM|#

I think McCain-Feingold gets tossed. Roberts and Alito aren't about to make the law even more complicated with the minimalist decision. Not to mentioned McCain probably pissed them off with his statement afterwards. Considering the current climate in Washington, the justices are fully aware of corporate involvement in policy. Keeping the advocacy ban would be pointless.

|9.11.09 @ 9:51AM|#

If political advocacy by corporations can be regulated, why are newsprint publishing corporations exempt? They routinely endorse candidates right before elections.

Because that is the purpose for which they were created?

Oddly enough, the investors in these corporations believe their purpose is to make money.

|9.11.09 @ 10:23AM|#

I always said that in the battle for free expression, we focus too much on the words "free speech" and not enough on the words "free press." If we remember what freedom of the press is all about it is not merely the freedom to create printed materials, but the simultaneously it is the right to create an infrastructure to create and distribute them. Speech is spontaneous, and costless. the press is neither one of those things. so when we talk about freedom of the press in this context, it is easier to understand why it is downright appropriate for corporations to get involved.

This hillary movie is a classic example. how are you supposed to make a movie without any corporate involvement? And notice how selective we are, here. This movie couldn't be shown. but on the other hand, Fahrenheit 9-11 was kosher. why?

The reality is the entire campaign finance structure must be scrapped and the only thing the FEC should require is disclosure. Everyone discloses who is behind the money and the ads, and let the people decide.

|9.11.09 @ 10:23AM|#

Why not just remove ALL fundraising laws?

After all, what in the world can they do? If somebody wins the WH and violates every single fundraising law on the books --- then what?

Remove the President?

No. You can't do anything.

So make it a campaign issue, not a legal matter.

|9.11.09 @ 10:42AM|#

It is more fundamental.

Corporations are a regulatory creation, they have no special Constitutional rights, except those granted by voters in the current Congress. Their shareholders still retain all the rights of citizens, including the right to form organizations that are not regulatory creations of Congress.

ajacksonian|9.11.09 @ 10:52AM|#

How to make sure corporations don't use their power?

We call these legal devices 'corporate citizens' in many respects, so why not enforce the 'citizen' part and give them the exact, equal restrictions of citizens? One per corporation and all subsidiaries of it. The same restrictions on campaign contributions and all other rigmarole regarding what real, live citizens have to put up with. Hell, throw in a 'three strikes and you are out' deal to disband corporations that has those running the firm in a felonious way make the corporate entity, itself, accountable for its actions? That might wake up a few CEOs and Corporate Boards, too...

Why, exactly, should corporations have MORE power to their speech just due to their being rich and potentially immortal as legal entities? Bring them down to Earth with the rest of us mere mortals and start utilizing that concept we have to its utmost. 'Corporate Citizens' need the exact, same accountability as real, mortal, corpreal citizens.

SJPHOTO|9.11.09 @ 11:18AM|#

Enough already with the idea that the "press" has a special right under the first amendment. They do not. The phrase "free press" meant that not only could you say what you wanted, but you could print and publish it too. At the time, the English government restricted political debate by taxing and licensing presses. Our founders realized that the right to print and publish your thoughts had to be protected.

|9.11.09 @ 11:32AM|#

"Since only people have rights, what part of the corporation has this free speech right, the owners, the management, the employees?"

Yes.

Any and all of them, in any combination you'd like to put them in.

|9.11.09 @ 11:38AM|#

I propose that if this case doesn't toss out the corporate thing then newspapers be limited to that which can be written and hand set and printed by single individuals.

Likewise, tv news would be required to become one-man (or woman) operations with webcams only. That would, of course, get rid of probably all of the current news blowhards on tv, since very few of them appear smart enough to operate a webcam. (Yes, I'm looking at *you*, Olberman.)

|9.11.09 @ 11:40AM|#

When the printing press was new governments wanted to control that too. And they really haven't stopped.

|9.11.09 @ 11:41AM|#

Aren't the vast majority of the presses owned by corporations? Why wold one corporation be exempt from the law but not another?

|9.11.09 @ 11:44AM|#

There is a good reason why the First Amendment doesn't distinguish individuals from corporations: it has nothing to do with either one, it is addressed to Congress. Specifically, it says: "Congress shall make no law ... abridging the freedom of speech ..." There was a fair amount of opposition to the Bill of Rights at the time. The fear of the opponents was that it would be interpreted as granting rights to the states or the people, which it does not, ostensibly. Those rights have precedence over even the Constitution, which is after all only one of the "founding" documents.

Buster9|9.11.09 @ 11:48AM|#

ajacksonian: "We call these legal devices 'corporate citizens' in many respects, so why not enforce the 'citizen' part and give them the exact, equal restrictions of citizens? One per corporation and all subsidiaries of it. The same restrictions on campaign contributions and all other rigmarole regarding what real, live citizens have to put up with."

Including the right to vote, of course...

...Which should prove interesting, given that one can create or destroy a million corporations anywhere at the stroke of a pen.

|9.11.09 @ 2:51PM|#

Anything that is said, or written, is said or written by a real, live person, or persons.

They can say anything they wish, at anytime, in anyplace.

Funny how lefty Feingold, and Rino McCain, 'reached across the isle' and with 'bi partisan' support got the law passed by the solons who Saddam like are in office for life.