"We can ban books!"... Hope and Change (TM), coming your way!

[FlamingMoe]

Recently the Supreme Court heard oral arguments in Citizens United v. Federal Election Commission, the latest in a series of challenges to the application of the McCain-Feingold Bipartisan Campaign Finance Reform Act (or, as I've taken to calling it, Johnny McCain's Magical Muzzle). Not surprisingly, the Solicitor General for the new administration argued in favor of the lower court's ruling that Citizens United could be prevented from showing their film, Hillary: The Movie, on an On Demand service shortly before the Democratic primaries.

What is surprising (or not) is the statements made by the Solicitor General in these arguments in response to questions from the bench. On page 27 of the oral arguments transcript, Justice Alito engages Malcolm Stewart (the Solicitor General) in an exchange where Stewart makes some pretty bold statements regarding the administration's view of its authority under BCRA:

JUSTICE ALITO: That's pretty incredible. You think that if -- if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?

MR. STEWART: I'm not saying it could be banned. I'm saying that Congress could prohibit the use of corporate treasury funds and could require a corporation to publish it using its --

At this point Justice Alito interjects with another question, but given the rest of his arguments, we can safely assume Stewart was going to finish with "political action committee." On the next page, Justice Kenndy engages Stewart in another question:

JUSTICE KENNEDY: Well, suppose it were an advocacy organization that had a book. Your position is that under the Constitution, the advertising for this book or the sale for the book itself could be prohibited within the 60 -- 90-day period -- the 60 -- the 30-day period?

MR. STEWART: If the book contained the functional equivalent of express advocacy.

I sure hope I'm not the only one alarmed by this assertion of power. I've always been against BCRA not only on first amendment grounds, but also because it's at least arguable that the power granted to Congress by the Constitution to regulate federal elections does not extend to regulating the campaigns that precede them. And now the federal government is asserting that it has the power to ban books under this law, provided that they aren't paid for in a certain manner.

If that doesn't sound too onerous, the manner in which such books must be funded should be given a second glance. Federal election law is probably about as complex as the federal tax code, so I resorted to the Wikipedia entry on political action committees to see if it explains how they must be funded. Indeed, it does. According to Wikipedia (an important caveat, to be sure) a PAC must be funded by donations from individuals, and any individual cannot donate more than five thousand dollars per year. Corporations are not allowed to donate to PACs. This means a publisher is prohibited from printing and distributing a book that it pays for itself if the book is deemed to be an "electioneering communication." According to Stewart (page 29):

CHIEF JUSTICE ROBERTS: If it has one name, one use of the candidate's name, it would be covered, correct?

MR. STEWART: That's correct.

Although the law explicitly exempts newspapers from funding requirements, I can't imagine why they should be treated any different from any other publisher which puts words to paper. If corporations can be prohibited from publishing "electioneering communications" under BCRA and it does not run afoul of the Constitution, I fail to see why that provision which exempts newspapers from the funding requirements cannot be removed at some future date with no problems at all.

Book banning, and the theoretical muzzling of the press: this is "Hope and Change"?

 

[dudalb]

You know , this is a lot like "The Sky Is Falling" threads we had from people on the Left during the Bush Adminsitration.

 

[332nd]

You know , this is a lot like "The Sky Is Falling" threads we had from people on the Left during the Bush Adminsitration.

Agreed. Every so often I have to check the calendar to make sure some kind of Trekian space time thing hasn't occurred.

 

[FlamingMoe]

You're kidding, right? The legal spokesman for the administration is standing in front of the Supreme Court claiming the authority to ban books and you're dismissing this as hysterics?

Are you insane?

 

[fullflavormenthol]

Fine. So long as I can produce a film showing Sarah Palin hanging out with KKK members and longing for the return of the Nazi party. I mean it is all protected speech right? As a political figure the rules of libel are highly laxed, and it shouldn't matter if I release it before the Republican primaries.

 

[Upchurch]

You're kidding, right? The legal spokesman for the administration is standing in front of the Supreme Court claiming the authority to ban books and you're dismissing this as hysterics?

uh...

MR. STEWART: I'm not saying it could be banned.

hm.

Are you insane?

Are you pulling a Poe here?

 

[FlamingMoe]

Fine. So long as I can produce a film showing Sarah Palin hanging out with KKK members and longing for the return of the Nazi party. I mean it is all protected speech right? As a political figure the rules of libel are highly laxed, and it shouldn't matter if I release it before the Republican primaries.

So long as you follow the laws regarding reckless disregard of the truth and libel, fire away. That's what freedom of speech and the press is all about.

 

[FlamingMoe]

uh...

hm.


Are you pulling a Poe here?

I don't know what you mean by "pulling a Poe" but you need to read more than that one statement, because that one statement carries an onerous burden regarding exactly how the books can be published. You basically have to get people to give you money for the purpose of publishing the book, even if it mentions one candidate one time. How does that square with freedom of speech or the press?

 

[dudalb]

You're kidding, right? The legal spokesman for the administration is standing in front of the Supreme Court claiming the authority to ban books and you're dismissing this as hysterics?

Are you insane?

Well, your avatar suggesting that Obama is a Commie would indicate to a lot of people a certain hysteria is present.....

 

[dudalb]

And if the Obama administration really did advocate banning books, I would do a 180 degree turn in my generally favorable opinion of them so quick it would make your head swim.

 

[Upchurch]

I don't know what you mean by "pulling a Poe"

Poe's Law

but you need to read more than that one statement, because that one statement carries an onerous burden regarding exactly how the books can be published. You basically have to get people to give you money for the purpose of publishing the book, even if it mentions one candidate one time. How does that square with freedom of speech or the press?

I haven't read the transcript, only what you quoted. But you said the law specifically exempts newspapers, right? I say that squares with freedom of press nicely.

You haven't quoted anything about banning books.

 

[FlamingMoe]

Well, your avatar suggesting that Obama is a Commie would indicate to a lot of people a certain hysteria is present.....

It suggests he is a socialist, which is at least plausible, given his attempt to control nearly every aspect of the banking and health care industries. Regardless, my avatar has no bearing on what the Solicitor General said.

And if the Obama administration really did advocate banning books, I would do a 180 degree turn in my generally favorable opinion of them so quick it would make your head swim.

Which they have now done, and it seems, oddly, my head is not, in fact, swimming.

 

[FlamingMoe]

Poe's Law

I don't see the relevance. I'm simply quoting a the lead lawyer for the Obama Administration. Perhaps you're referring to Stewart's arguments, but I am of the opinion that the Supreme Court is not a likely venue for parody.

I haven't read the transcript, only what you quoted. But you said the law specifically exempts newspapers, right? I say that squares with freedom of press nicely.

And, if you read more than that one phrase, you'll note that I also pointed out that the law could be altered with no problems of constitutionality if this decision is upheld. Newspapers are corporations too, you know.

You haven't quoted anything about banning books.

Yeah, I did. In the OP. Perhaps you should read it more carefully.

 

[Upchurch]

And, if you read more than that one phrase, you'll note that I also pointed out that the law could be altered with no problems of constitutionality if this decision is upheld. Newspapers are corporations too, you know.

So, the law doesn't specifically exempt newspapers? Which is it?

Yeah, I did. In the OP. Perhaps you should read it more carefully.

I see him arguing that Congress could prevent the use of certain kinds of fund (but not all) to publish certain kinds of materials. I also see where he argues that advertising for some kinds of materials could be prohibited within certain time frames.

I see nothing there that prevents the publishing of a book or, as you claim, bans a currently published book.

Perhaps you could be more specific?

 

[rwguinn]

So, the law doesn't specifically exempt newspapers? Which is it?



I see him arguing that Congress could prevent the use of certain kinds of fund (but not all) to publish certain kinds of materials. I also see where he argues that advertising for some kinds of materials could be prohibited within certain time frames.

I see nothing there that prevents the publishing of a book or, as you claim, bans a currently published book.

Perhaps you could be more specific?

Advertising of published material is ALSO speech...
And you don't have a problem with supressing speech if you disagree with it.
Gotcha. 5x5

 

[Upchurch]

Advertising of published material is ALSO speech...
And you don't have a problem with supressing speech if you disagree with it.

No. I was addressing the claim that "We can ban books!", which doesn't appear to be there.

There is also the issue of trying to bypass campaign finance laws, which appears to be the flip side of this issue.

 

[Alferd_Packer]

So what books were banned?

 

[Brainster]

This is problematic. The position taken by the administration is not that it can ban books. But its position that it can ban advertising for books that contain express advocacy is very troubling. We know that the government has already banned advertising by outside groups that expressly support voting for or against a candidate. Hence we are bombarded with ads that tell us to call Congressman Whitebread and tell him to give the little guy a raise, or to call Congresswoman Kumbayah and tell her to leave our guns alone.

This is of course in support of an attempt to prop up the latest failed effort at campaign finance reform, which is dead anyway.

 

[jj]

When was this argument made?

 

[Tsukasa Buddha]

JUSTICE KENNEDY: Well, suppose it were an advocacy organization that had a book. Your position is that under the Constitution, the advertising for this book or the sale for the book itself could be prohibited within the 60 -- 90-day period -- the 60 -- the 30-day period?

MR. STEWART: If the book contained the functional equivalent of express advocacy.

==

OMG they are banning books!!!

____

I think you need to revisit either English or Logic 101.