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

[Jonathan Adler]

The regulation that would be permissible would prohibit the publication of
such a book unless the publisher created a PAC to raise funds to publish
it.

Is this the power to "ban" books? Well, it's certainly a far more expansive
restriction than is used by the folks who put together the "banned books"
list, thought I suppose one could argue that so long as there is some way
for someone to publish the relevant material, there isn't a "ban." This
strikes me as kindof like Mississippi's argument that it's abortion
regulations don't create a substantial obstacle to a woman's ability to
obtain an abortion because the law allows for the possibility of other
abortion providers to enter the market and provide the service.  Yes,
that's possible, but what do we call it in the interim when there are no
abortion providers left in the state?

For folks that care, I recommend starting on page 26 and read through to
page 30 in the transcript.
Here's the link:
http://www.supremecourt.gov/oral_arguments/argument_transcripts/08-205.pdf

JHA


On Sun, Oct 11, 2015 at 6:07 PM, Marty Lederman <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> 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
>>>>
>>>>
>>>>

-- 

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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