Kagan's Defense of Censorship

By Terence Jeffrey (Archive) · Wednesday, May 12, 2010

When the first Congress passed the Bill of Rights, it left no ambiguity about whether future Congresses could enact laws prohibiting Americans from speaking. "Congress," says the First Amendment, "shall make no law ... abridging the freedom of speech, or of the press."

But the basic meaning of the First Amendment was very much at issue last March, when the Supreme Court initially heard arguments in Citizens United v. Federal Election Commission.

The immediate question in that case was whether the FEC had been correct in preventing Citizens United, a nonprofit corporation, from using cable Video on Demand to distribute a documentary -- "Hillary: The Movie" -- during the 2008 Democratic presidential primary season.

Two problematic provisions of campaign finance law were at issue. One said corporations could not engage in broadcast communications that mentioned a candidate for federal office in the 30 days before a primary election or 60 days before a general. The other, known as 441b, said corporations could not spend money from their general treasuries on any kind of speech at all advocating the election or defeat of a federal candidate.

Under these laws, corporations wanting to publish or broadcast speech about members of Congress needed to create a separate organization -- a political action committee (PAC) -- and raise contributions for that PAC to fund that type of speech. When Deputy Solicitor General Malcolm Stewart presented the administration's oral argument in Citizens United in March 2009, Chief Justice John Roberts asked him if the government believed it could stop publication of a 500-page "discussion of the American political system" that says at the end, "Vote for X."

"Yes, our position would be that the corporation could be required to use PAC funds rather than general treasury funds," said Stewart.

"And if they didn't, you could ban it?" asked Roberts. "If they didn't, we would prohibit publication of the book using the corporate treasury funds," said Stewart.

In the wake of the administration's remarkable claim that it could constitutionally prohibit publication of a book, the court decided to use the Citizens United case to revisit its precedents on campaign finance law. Had the court given the government too much power to abridge speech?

Last September, Solicitor General Elena Kagan presented the administration's second oral argument in the case. Justice Ruth Bader Ginsburg said to her: "May I ask you one question that was highlighted in the prior argument and that was: If Congress could say no TV and radio ads, could it also say no newspaper ads, no campaign biographies? Last time the answer was, yes, Congress could, but it didn't. Is that -- is that still the government's answer?"

Kagan said the administration's position had changed. Although 441b authorized the government to prohibit corporations from publishing books, the administration now believed that if it tried to apply the law in this way the corporation targeted by the censorship would have a good case in court against the government's action.

But Chief Justice Roberts wanted to know just how far the administration thought it could constitutionally go in using the 441b provision to censor political speech by corporations. "If you say that you are not going to apply it to a book, what about a pamphlet?" he asked Kagan.

"I think a pamphlet would be different," said Kagan. "A pamphlet is pretty classic electioneering, so there is no attempt to say that 441b only applies to video and not to print."

Kagan was right about one thing. Pamphlets are a classic form for political speech. The Founding Fathers published many of them protesting the British Parliament's usurpation of their rights.

Chief Justice Roberts published his rejoinder to Kagan in the form of a concurring opinion in Citizens United.

"The government urges us in this case to uphold a direct prohibition on political speech. It asks us to embrace a theory of the First Amendment that would allow censorship not only of television and radio broadcasts, but of pamphlets, posters, the Internet and virtually any other medium that corporations and unions might find useful in expressing their views on matters of public concern," said Roberts. "Its theory, if accepted, would empower the government to prohibit newspapers from running editorials or opinion pieces supporting or opposing candidates for office, so long as the newspapers were owned by corporations -- as the major ones are. First Amendment rights could be confined to individuals, subverting the vibrant public discourse that is at the foundation of our democracy."

Members of the Senate Judiciary Committee need to force Kagan to make extensive use of her faculty of speech in explaining why she believes government can shut people up.

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