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

Sun Oct 11 15:21:06 PDT 2015

I suppose then that the NY Times could be prohibited from using corporate funds to print editorials that are express advocacy or CBS could be prohibited from using corporate funds to put on the Late Show with Stephen Colbert.

Even if we could draw a line (per Austin if I remember correctly) between media and non-media corporations, wouldn't book publishers have to fall on the media corporation side? So how could the administration's concession be seen as anything other than a serious inroad into First Amendment rights?

Mark

Mark S. Scarberry
Pepperdine University School of Law

Sent from my iPad

On Oct 11, 2015, at 3:08 PM, "Marty Lederman" <lederman.marty at gmail.com<mailto:lederman.marty at gmail.com>> wrote:

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<mailto: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<mailto: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<mailto: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<mailto: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<mailto: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
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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<tel:216-368-2535>
fax) 216-368-2086<tel:216-368-2086>
cell) 202-255-3012<tel:202-255-3012>
jha5 at case.edu<mailto:jha5 at case.edu>
SSRN: http://ssrn.com/author=183995

http://www.washingtonpost.com/news/volokh-conspiracy/wp/author/adlerj/

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