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

[Benjamin Barr]

We all understand that a PAC is a separate association from the main
speaker with separate First Amendment rights, correct?  The fact that the
YMCA might speak for me doesn't make a speech ban against me permissible.
The fact that Earth Justice might speak for Marty doesn't protect his First
Amendment rights.  Free speech rights are individual, non-fungible sort of
things.

This is a major point of *Citizens United*, especially because the FEC
linguistic dance team used to proclaim how no constitutional rights were
being damaged because you could "speak through a PAC."  But that reasoning
is dead, as it should be, though perhaps this is just not yet realized on
this listserv.

Forward,

B

On Sun, Oct 11, 2015 at 6:24 PM, Jonathan Adler <jha5 at case.edu> wrote:

> 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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