[EL] Citizens United revisionist history: "banning books"

[Marty Lederman]

No -- even a (hypothetical) (non-MCfL-exempt) corporation without a PAC
would not be "barred" from publishing a book.  Even if the book contained
express advocacy, the law permitted a corporation to publish it as long as
it did not use shareholder funds to do so.  That is to say, it would as a
practical matter have to set up a PAC and collect funds for the purpose of
publishing the express advocacy.  This sort of source restriction (not a
publication restriction) really wasn't such a shocking idea -- it was the
legal regime that had been in place for 60 years, and -- understandably --
no one thought that we lived in a Fahrenheit-451-like world in which the
state "banned books."

On Sun, Oct 11, 2015 at 5:15 PM, Jonathan Adler <jha5 at case.edu> wrote:

> Well, kinda.
>
> Pressed on the issue, he acknowledged that (under the government's
> position) a corporation could be banned from publishing a book unless it
> used PAC funds to pay for publication, so a corporate publisher that lacked
> a PAC, could be barred from publishing and distributing the book.
>
> Here's the transcript. The relevant exchanges occur at pages 28-30.
>
> JHA
>
>
>
> On Sun, Oct 11, 2015 at 4:37 PM, Marty Lederman <lederman.marty at gmail.com>
> wrote:
>
>> Just an aside, to address the oft-repeated canard that "the deputy
>> solicitor defended government power to *ban books* at the first CU
>> argument."
>>
>> Of course Malcolm Stewart said nothing of the sort.  He said that if a
>> *corporation* wished to publish a book containing express advocacy, the
>> state could require that such publication *not be subsidized by general
>> corporate treasury funds*.
>>
>> On Sun, Oct 11, 2015 at 2:56 PM, Ilya Shapiro <IShapiro at cato.org> wrote:
>>
>>> But there's no need to balance rights/values here. 200 people spending a
>>> lot of money on political speech don't inhibit anybody else's right to
>>> spend money on speech (individually or pooled) or to knock on doors, or to
>>> otherwise engage in political speech. There's not some zero-sum game with a
>>> finite amount of speech (or a finite amount of money to spend on it).
>>>
>>> Also, three points regarding some mistaken premises (not sure to what
>>> extent the rest of your argument stands or falls thereby):
>>>
>>> 1. Money is speech only insofar as bullhorns, laptops, printing presses,
>>> wifi, and other tools for facilitating speech are, no more no less. That
>>> really shouldn't be controversial -- though perhaps, like the deputy
>>> solicitor who defended govt power to ban books at the first CU argument,
>>> many people on this list are ok with restricting all those tools if they're
>>> used "too much" for political speech.
>>>
>>> 2. There's not a consensus that money shouldn't be used to allocate
>>> kidneys. There's a reason there's a shortage of organs and people die on
>>> waiting lists. And evidence from Iran, of all places, show that kidney
>>> markets can work rather well.
>>>
>>> 3. I'm not sure what "false" allegations about Planned Parenthood you
>>> mean -- I guess something different/earlier than the current scandal -- but
>>> surely it's not the government role to be some sort of fact-checker
>>> regarding public debates. See the Ohio law that was before the Court last
>>> year (you'll perhaps recall my satirical brief that PJ O'Rourke joined) and
>>> was struck down on remand.
>>>
>>> Ilya Shapiro
>>>
>>>
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>
>
>
> --
>
> Jonathan H. Adler
> Johan Verheij Memorial Professor of Law
> Director, Center for Business Law & Regulation
> Case Western Reserve University School of Law
> 11075 East Boulevard
> Cleveland, OH 44106
> ph) 216-368-2535
> fax) 216-368-2086
> cell) 202-255-3012
> jha5 at case.edu
> SSRN: http://ssrn.com/author=183995
>
> http://www.washingtonpost.com/news/volokh-conspiracy/wp/author/adlerj/
>
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