Did you enjoy ‘Fire and Fury’? Thank Citizens United for it 

March 9, 2018   •  By David Keating   •    •  

If you like Michael Wolff’s book, “Fire and Fury: Inside the Trump White House,” be thankful for the Supreme Court’s Citizens United decision. The right to publish this book was guaranteed by the Court’s controversial, yet sound ruling.

Recall the case involved a nonprofit corporation named Citizens United that produced a documentary critical of Hillary Clinton it wanted to run over cable systems on demand. No problem, right? Not quite. At the time, the Bipartisan Campaign Reform Act of 2002 prohibited corporations, including nonprofits, from using their funds for certain broadcast communications that named a candidate close to an election or for “express advocacy” communications that urged the election or defeat of any federal candidate.

Everyone agreed the documentary, funded by the nonprofit corporation Citizens United, opposed the election of Clinton and would thus likely run afoul federal law. As a result, Citizens United sued, arguing the law was unconstitutional. The rest, of course, is history. The Supreme Court agreed with Citizens United and stuck down the challenged law. “Governments are often hostile to speech,” wrote Justice Anthony Kennedy for the court in his opinion in the Citizens United case, “but under our law and our tradition it seems stranger than fiction for our government to make this political speech a crime.”

Fast forward to today. Wolff’s book is indisputably speech funded by a corporation and is scathingly critical of President Trump. Had Citizens United turned out differently, the Federal Election Commission (FEC), with just an administrative sleight of hand, could have constitutionally placed Wolff’s publisher in the agency’s crosshairs.

It does not matter the book was released in January, far removed from any primary or general election. Express advocacy paid for by a corporation’s general treasury funds was banned regardless of proximity to an election. Although the book makes no explicit calls for voters to support or oppose Trump, it could easily be argued that it is the “functional equivalent” of express advocacy because it “is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” And Trump has already declared his candidacy for 2020.

What’s more, when deciding whether a communication constituted express advocacy, the FEC, prior to Citizens United, looked for whether the communication took a position on an “office holder’s character, qualifications, or fitness for office.” Is there any doubt the book takes a position on Trump’s “character, qualifications, or fitness for office?”

It also does not matter “electioneering communications” did not include “printed materials,” or that on rehearing, the government doubted the FEC would ever use the Bipartisan Campaign Reform Act to ban books. Although Citizens United concerned an electioneering communication, the broader ban on corporations using general treasury funds for express advocacy struck down by the court applied to all forms of media, including books.

Moreover, any confidence in the FEC’s unwillingness to ban books is sorely misplaced. When the Citizens United was argued the first time in March 2009, Justice Kennedy asked deputy solicitor general Malcolm Stewart whether the laws empowered the FEC with book-banning authority. Incredibly, Stewart responded in the affirmative, “If the book contained the functional equivalent of express advocacy,” which is a position the government never retracted, even on rehearing the case.

As recently as 2016, the FEC declined to exempt the publication of books from its definition of a “contribution,” a move which, at least as far as the FEC is concerned, effectively places books outside the press protections secured by the First Amendment. Never mind the Supreme Court has long held freedom of the press “embraces the circulation of books as well as their publication.”

One would think the FEC would respect history and the law enough to know book-banning never ends well, yet here we are. Fortunately, we have Citizens United. For all the criticism the case has garnered, there is no denying it has served as a bulwark against dystopian regulatory encroachment. For that, we owe the Supreme Court an enormous debt of gratitude.


This post originally ran in The Hill on March 3rd 2018.

David Keating

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