Today marks the one-year anniversary of a pivotal moment in campaign finance jurisprudence: the day the government admitted, via the deputy solicitor general, that it claimed the authority to censor books—and any media—of a political variety.
From a post-Citizens United op-ed Brad Smith authored in the AOL News opinion portal Sphere:
In March, Deputy Solicitor General Malcolm Stewart stood before the U.S. Supreme Court and argued that the Constitution gave the government the power to ban the distribution of a politically oriented movie if, like most movies, it was distributed by a corporation. Justice Samuel Alito replied, “That’s pretty incredible.”
By the time Stewart’s turn at the podium was over, he told the court that the government could restrict the distribution of books through Amazon’s digital book reader, Kindle; could prevent a union from hiring a writer to author a political book; and could prohibit a corporate publisher from publishing a 500-page book if it contained even one line of candidate advocacy.
Today, in Citizens United v. Federal Election Commission, the Supreme Court said, “No, it can’t.”
In the Journal of National Affairs, Smith explained why the original oral argument in Citizens United stand the test of time as a remarkable moment in the history of political speech regulation:
March 24, 2009, may go down as a turning point in the history of the campaign-finance reform debate in America. On that day, in the course of oral argument before the Supreme Court in the case of Citizens United v. Federal Election Commission, United States deputy solicitor general Malcolm Stewart inadvertently revealed just how extreme our campaign-finance system has become…
Back on March 25, 2009, CCP explained the impact of Stewart’s remarks:
… Stewart had only fielded four questions from Chief Justice John Roberts before he got a line of questioning begun by Justice Samuel Alito that would lead the entire undoing of the government’s case… With those inquiries, the trap was set—and the Deputy Solicitor General took the bait.
Even the New York Times admitted that the government’s posture set the state for the re-argument of Citizens United, and its sweeping victory for free speech:
The discussion of book banning may have helped prompt the request for re-argument…
In an interview, Mr. Wertheimer seemed reluctant to answer questions about the government regulation of books. Pressed, Mr. Wertheimer finally said, “A campaign document in the form of a book can be banned.”
Full transcript of the infamous exchange is available on pages 26-30 of the transcript of the March 24 oral argument in Citizens United v. Federal Election Commission.
