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

Sun Oct 11 15:26:16 PDT 2015

Mark:  We can debate whether the government's "concession" -- i.e., the
regime in place for six decades -- was "a serious inroad into First
Amendment rights."  Indeed, that's what everyone *did* debate, for many
years, through *Austin *right up to *CU*.  My simple point was that,
whatever one thinks of it, it didn't remotely resemble what Ilya and others
have described as a "government power to *ban books*."

On Sun, Oct 11, 2015 at 6:21 PM, Scarberry, Mark <
Mark.Scarberry at pepperdine.edu> wrote:

> 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>
> 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
>>>>
>>>>
>>>>
>>>> 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/
>>
>
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