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

[Marty Lederman]

Please . . . what?  The "regulation that would be permissible" would be a
limit on corporations using *nondirected* shareholders' funds to subsidize
express advocacy.  That's even not "banning" the corporation (let alone its
shareholders) from publishing a book--let alone asserting a government
power to "ban books."

On Sun, Oct 11, 2015 at 6:00 PM, Jonathan Adler <jha5 at case.edu> wrote:

> Marty,
>
> Please.  The issue in that exchange, as the justices involved made
> abundantly clear, is not what BCRA would allow, but the extent of
> regulation that would be permissible under the government's theory -- and
> the government conceded exactly what I said it did. Whether or not that is
> an extreme position I leave for others to judge.
>
> JHA
>
> On Sun, Oct 11, 2015 at 5:32 PM, Marty Lederman <lederman.marty at gmail.com>
> wrote:
>
>> 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
>>>>>
>>>>>
>>>> _______________________________________________
>>>> Law-election mailing list
>>>> Law-election at department-lists.uci.edu
>>>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>>>
>>>
>>>
>>>
>>> --
>>>
>>> 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/
>>>
>>
>>
>
>
> --
>
> 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/
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20151011/343bd789/attachment.html>