Will S.G. correct the government’s book banning mistake?

In Citizens United v. Federal Election Commission, the most recent blockbuster campaign finance and political speech case, the Supreme Court has been asked to decide whether the government can ban a documentary critical of Hillary Clinton in the days shortly before an election. This case afforded newly-minted Solicitor General Elena Kagan the opportunity to speak candidly about the government’s ongoing campaign of silencing citizens’ speech through the FEC.

While General Kagan did much to advance the government’s position addressing the many reasons why speech could be criminalized, she obfuscated in one of the case’s most central points: whether campaign finance laws and Austin v. Michigan Chamber of Commerce and McConnell v. FEC, at issue in Citizens United, allow the government to censor books.

Asked whether the government possessed book banning authority through the Federal Election Campaign Act, the Solicitor General assured the Court books would remain safe. In March, the same government reasoned just the opposite: books could be banned if they contained a call to vote for or against a candidate. Speech that would be outlawed in March is now tolerated, at least until Halloween, and then all bets are off. All promises of the Solicitor General aside, the First Amendment means the same thing today as it did six months ago. 

When pressed on the switch, the Solicitor General explained that the FEC has never enforced the law when it came to books. Justice Antonin Scalia rightly retorted, “You are a lawyer advising somebody who is about to come out with a book and you say don’t worry, the FEC has never tried to send somebody to prison for this… Is that going to comfort your client? I don’t think so.”

What is even more troubling than a government that decides it can ban books in March, but not in September, is a government that misspeaks or misunderstands the truth about the law. Solicitor General Kagan explained to the Court that it need not worry about book banning because, “what we’re saying is that there has never been an enforcement action for books. Nobody has ever suggested — nobody in Congress, nobody in the administrative apparatus has ever suggested that books pose any kind of corruption problem.”

The first problem with this is that Kagan leaves open the possibility that books will be banned in the future, once it is determined that they “pose a corruption problem.” And as other avenues for political speech are cut off through regulation, books will become more prominent tools for political discourse.

Leaving that aside, let’s be clear about this from Kagan’s view — as of now (but not back in March), books will not corrupt the minds of the electorate or be too influential on public officeholders’ judgments, but pamphlets, movies, and bumper stickers prove just too corrupting to trust to an open exchange of ideas. 

In 2004, George Soros published, of all things, a book — The Bubble of the American Supremacy: The Costs of Bush’s War in Iraq. To publicize his book, Soros gave speeches in 12 cities and delivered two million related brochures. After receiving complaints about the book and its publicity, the Office of General Counsel at the FEC pursued a review of Soros’ bold claim to speak his mind (Matter Under Review 5642). This investigation into a book and its publicity included document and deposition subpoenas, interrogatories and orders. It seems the FEC has indeed investigated book publishing, but who are you going to believe, the Solicitor General or your lying eyes?  

The FEC found the brochures in the Soros matter to be especially problematic. While the pamphlets generally summarized the theme of the book, they also criticized President Bush with text like “Why We Must Not Re-elect President Bush.” Corrupting? The fine bureaucrats at the FEC reasoned so. That Soros attempted to comply with the law by filing independent expenditure reports for the book and its publicity was of no avail. By citing the failure to include costs for his lease or rental of a mailing list, the FEC’s Office of General Counsel pushed forward its burdensome investigation — an investigation about a book and its related publicity.

Supreme Court observers are patiently waiting for the Solicitor General to file a supplemental brief correcting the government’s misstatement in oral argument that “there has never been an enforcement action for books.”

In deciding whether to trust our citizens with the full protection of the First Amendment, the Court should be wary of relying on the representations of counsel that prove unreliable. As Chief Justice John Roberts exclaimed at the oral argument, “We don’t trust our First Amendment rights to FEC bureaucrats.”

Unfortunately, that has been the case for too long. No one wants to believe that Americans pay some $65 million a year to fund an agency that bans books, but we do, trusting that they won’t. And while it is a noble gesture for the Solicitor General to grant a vacation to the censor cops, Americans deserve more than the empty promises of General Kagan or the endless posturing of the FEC. They demand what the First Amendment guarantees them: pure, unadulterated speech.

The Center for Competitive Politics is now the Institute for Free Speech.