How in the World Did a Case About Speech Restrictions Become a Battle Over Government Censorship?

In a recent New Yorker article about Citizens United v. Federal Election Commission, the 2010 case in which the Supreme Court overturned restrictions on political speech by corporations, Jeffrey Toobin focuses on the notorious book question during the first round of oral arguments: Given that Congress had prohibited corporations (including nonprofit advocacy groups) from airing TV and radio ads mentioning federal candidates close to an election, could it also stop them from publishing books aimed at boosting or tearing down a candidate during the campaign season? Because Deputy Solicitor General Malcolm Stewart said yes, Toobin writes, "a single question changed the case, and perhaps American history." A case that could have been decided on narrower grounds—by ruling, for example, that the Bipartisan Campaign Reform Act's ban on "electioneering communications" did not apply to nonprofit groups like Citizens United or by exempting full-length documentaries such as the FEC-proscribed Hillary: The Movie—became the basis for throwing out not only that provision of BCRA (a.k.a. McCain-Feingold) but also the pre-existing ban on "express advocacy." In Toobin's telling, things would have turned out very differently if only Stewart had answered that question correctly. But it not clear why Toobin thinks Stewart was wrong, as opposed to dangerously candid, in laying out the government's position. Here is Toobin's explanation:

Stewart was wrong. Congress could not ban a book. McCain-Feingold was based on the pervasive influence of television advertising on electoral politics, the idea that commercials are somehow unavoidable in contemporary American life. The influence of books operates in a completely different way. Individuals have to make an affirmative choice to acquire and read a book. Congress would have no reason, and no justification, to ban a book under the First Amendment.

Commercials, of course, were not truly unavoidable even back in 2002, when BCRA was passed, and the proliferation of DVRs since then makes that premise even more questionable. People choose whether to watch a commercial and whether to buy what it is selling, just as they choose whether to read a book and whether to accept its arguments. Campaign finance regulators surely could build a case for restricting election-related books on the grounds that they allow corporations to exercise undue influence on voters by presenting seemingly substantive briefs that not only persuade people directly but generate free publicity via TV, radio, newspapers, magazines, and the Internet. The question is whether there are constitutional grounds for distinguishing between political messages on paper and political messages on TV or radio. Stewart did not offer any. In fact, he not only suggested that extending the ban on electioneering communications to print would be constitutionally permissible; he noted that corporations were already barred from publishing books that include express advocacy—unambiguous support for a candidate's election or defeat. So if Citizens United had published a book explicitly opposing Hillary Clinton's selection as the Democratic presidential nominee, that would have been illegal too.

Stewart did note that the ban on express advocacy made an exception for media corporations such as book publishers (though not for advocacy groups such as Citizens United), without committing himself on whether such an exception was constitutionally required. It would be difficult to argue that it is, since "freedom of the press" refers to a technology of mass communication, not to officially recognized news organizations. It hardly seems consistent with this guarantee to say that some corporations, such as the one that publishes The New Yorker, have unfettered freedom to comment on politics while others, such as the NRA or the ACLU, have to respect government-imposed limits. 

Toobin notes that during the second round of oral arguments in Citizens United—provoked largely by Stewart's response to the book question—newly appointed Solicitor General Elena Kagan declared that "the government's answer has changed" (a statement that drew laughter from the audience). But like Toobin, Kagan never gave a satisfying constitutional (as opposed to strategic) explanation for drawing a line between media, as I explained in my December 2010 Reason article about the reaction to Citizens United:

Although the express advocacy ban "does cover full-length books," Kagan said, "there would be a quite good as-applied challenge to any attempt to apply [it] in that context" because (as she explained during her Supreme Court confirmation hearings last summer) "nobody uses books in order to campaign"—a surprising assertion, given all the biographies, manifestos, and policy books that candidates and their supporters have produced over the years. Kagan added that the FEC so far had not tried to ban any books. That reassurance prompted Chief Justice John Roberts to object that "we don't put our First Amendment rights in the hands of FEC bureaucrats."

If books might be out of bounds, Roberts asked, "what about a pamphlet?" Kagan said "a pamphlet would be different," since "a pamphlet is pretty classic electioneering." This newly invented constitutional distinction between books and pamphlets raised new questions. "When does a pamphlet become a book?" asks former FEC Chairman Brad Smith, co-founder of the Center for Competitive Politics. "Is Thomas Paine's Common Sense, which is about 50 pages, a pamphlet or a book? How could you decide?" During Kagan's confirmation hearings in June, Sen. Orrin Hatch (R-Utah) asked her whether she really believed that "the protection of the First Amendment should depend on such things as the stiffness of a cover, the presence of a binder, or the number of words on a page."

The proposed distinction between documentaries like Hillary: The Movie (which the Court described as "a feature-length negative advertisement") and the "commercials" that Toobin says were Congress' real target raises similar problems: How short can a permitted documentary be without becoming a prohibited ad? Justice Anthony Kennedy posed another puzzler: Since BCRA's ban on electioneering communications refers to "satellite" communications, wouldn't it apply to an electronic book mentioning a federal candidate "if it comes from a satellite"? What about books read on radio or TV? Do they retain their talismanic paper value when converted to audio? Contrary to the way Toobin presents it, the book question—posed initially by Justice Samuel Alito, then pressed by Kennedy and Roberts—was not a trick that "turned a fairly obscure case about campaign-finance reform into a battle over government censorship." The battle was always about government censorship; the question merely highlighted that point.