Citizens United: Elena Kagan & Pamphlet Banning

SG ELENA KAGAN’S OFFICE: “[The U.S. Government] Could Prohibit The Publication Of The Book”

JUSTICE ALITO: “You think that if -- if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?” … MALCOLM L. STEWART, Deputy Solicitor General: “If the book contained the functional equivalent of express advocacy.” (Citizens United v. Federal Election Commission, Oral Argument, 3/24/09)

CHIEF JUSTICE ROBERTS: “If it's a 500-page book, and at the end it says, and so vote for x, the government could ban that?” … MALCOLM L. STEWART, Deputy Solicitor General: “We could prohibit the publication of the book.” (Citizens United v. Federal Election Commission, Oral Argument, 3/24/09)

JUSTICE SOUTER: “To point out how far your argument would go, what if a labor union paid an author to write a book advocating the election of A or the defeat of B? And after the manuscript was prepared, they then went to a commercial publisher, and they go to Random House. Random House says, yes, we will publish that. . . . We’re talking about how far the Constitutional ban could go, and we’re talking about books.” … MALCOLM L. STEWART, Deputy Solicitor General: “The labor union's conduct would be prohibited. . . .and I think it would be constitutional to forbid the labor union to do that.” (Citizens United v. Federal Election Commission, Oral Argument, 3/24/09)

SG Elena Kagan Revises Her Office’s Position: “The FEC Has Never Applied This Statute To A Book” But “A Pamphlet Would Be Different.”

JUSTICE GINSBURG: “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?” ELENA KAGAN, Solicitor General: “The government's answer has changed, Justice Ginsburg. . . .the government’s view is that although 441b does cover full-length books . . . the FEC has never applied 441b in that context.” … CHIEF JUSTICE ROBERTS: “We don't put our First Amendment rights in the hands of FEC bureaucrats; and if you say that you are not going to apply it to a book, what about a pamphlet?” GENERAL KAGAN: “I think a -- a pamphlet would be different. A pamphlet is pretty classic electioneering, so there is no attempt to say that 441 b only applies to video and not to print.”  (Citizens United v. Federal Election Commission, Oral Argument, 9/9/09)

U.S. SUPREME COURT: “This Troubling Assertion Of Brooding Governmental Power Cannot Be Reconciled With The Confidence And Stability In Civic Discourse That The First Amendment Must Secure.”

OPINION OF THE COURT: “This troubling assertion of brooding governmental power cannot be reconciled with the confidence and stability in civic discourse that the First Amendment must secure.” “The Government contends that Austin permits it to ban corporate expenditures for almost all forms of communication stemming from a corporation. … If Austin were correct, the Government could prohibit corporation from expressing political views in media beyond those presented here, such as by printing books.  The government responds ‘that the FEC has never applied this statute to a book,’ and if it did, ‘there would be quite [a] good as-applied challenge.’ … This troubling assertion of brooding governmental power cannot be reconciled with the confidence and stability in civic discourse that the First Amendment must secure.” (Citizens United v. Federal Election Commission, United States Supreme Court, Decided 1/21/10)

CONCURRING OPINION (Chief Justice Roberts & Justice Alito): “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. 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. The court properly rejects that theory, and I join its opinion in full. The First Amendment protects more than just the individual on a soapbox and the lonely pamphleteer.” (Citizens United v. Federal Election Commission, United States Supreme Court, Decided 1/21/10)

CONCURRING AND DISSENTING OPINION (Justice Scalia): “The notion … that modern newspapers, since they are incorporated, have free-speech rights only at the sufferance of Congress, boggles the mind.” (Citizens United v. Federal Election Commission, United States Supreme Court, Decided 1/21/10)

Notable Pamphlets

The Famous Pamphlet Common Sense:

“In January 1776, little more than a year after emigrating from England, Thomas Paine penned his famous radical pamphlet Common Sense, in which he urged the American Colonies to declare independence and immediately severe all ties with the British monarchy. Published just as colonists learned of George III's speech proclaiming the American Colonies in rebellion against the Crown, Common Sense became an instant best seller with several thousand copies sold within days.” (“American Treasures Of The Library Of Congress,” U.S. Library Of Congress, Accessed 5/14/10)

The Federalist Papers:

“On November 10, 1787, George Washington thanked Alexander Hamilton for sending him a copy of the pamphlet written by ‘Publius.’”