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

[Eric J Segall]

Is there anyone who thinks that tight limits on spending money on campaigns, contributions or expenditures, are a terrible idea but not a violation of the first amendment.

Just curious.

Best,

Eric

Sent from my iPhone

On Oct 11, 2015, at 6:30 PM, "Benjamin Barr" <benjamin.barr at gmail.com<mailto:benjamin.barr at gmail.com>> wrote:

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<mailto: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<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




--

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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