Institute for Justice Lists Bannable Books

The Institute for Justice, which sides with Citizens United in its fight against the federal ban on "electioneering communications," has drawn up a list of 10 books that could have been suppressed had Congress chosen to extend that ban to print. They include Michael Moore's Dude, Where's My Country, wherein the doughy documentarian declared "there is probably no greater imperative facing the nation than the defeat of George W. Bush in the 2004 election"; Meghan McCain's My Dad, John McCain, in which the possibly biased author confided that "there are a few things you need to know about my dad, and one of them is that he would make a great president"; and John E. O'Neill's Unfit for Command, in which the Swift boat veteran announced, "I do not believe John Kerry is fit to be commander in chief of the armed forces of the United States."

Is this list a joke? Only in the sense that what passes for "campaign finance reform" is a joke. During oral arguments (PDF) in Citizens United v. FEC last March, Deputy Solicitor General Malcolm Stewart claimed there was no constitutional barrier to preventing corporations from publishing books that support or oppose candidates for federal office close to an election. Every book on the I.J. list "was published by a corporation," notes I.J. attorney Steve Simpson.

But wouldn't legitimate publishers such as Warner Books, Aladdin, and Regnery (which published, respectively, the Moore, McCain, and O'Neill tomes) be exempted from any law that broadened the ban on electioneering communications, just as officially recognized media outlets are exempted from the current ban? Maybe. But Stewart is not sure such an exemption is constitutionally required. When Justice Antonin Scalia asked him whether "the government's position is that the First Amendment allows the banning of a book if it's published by a corporation," the most Stewart could offer by way of reassurance was this: "Because the First Amendment refers both to freedom of speech and of the press, there would be a potential argument that media corporations, the institutional press, would have a greater First Amendment right."

As I said in a column about the case last spring, the idea that some Americans, by virtue of their employers, have "a greater First Amendment right" than others is itself offensive. And contrary to Stewart's suggestion, it has no basis in the text of the First Amendment, which refers to different media (spoken vs. printed communication) but does not imply that the government may censor ordinary citizens in ways it may not censor professional journalists.

Next Wednesday the Supreme Court, apparently troubled by Stewart's notions of constitutional censorship, will hear a second round of arguments in this case. Earlier today I explained why the Court should overturn the rules that stopped Citizens United from distributing Hillary: The Movie on pay-per-view TV, and Damon Root argued that the Court should not let misbegotten notions of judicial restraint stand in its way.