Chief Justice Roberts: Kagan Asked Court to 'Embrace Theory of First Amendment That Would Allow Censorship Not Only of Radio and Television Broadcasts, But Pamphlets and Posters'
May 10, 2010Solicitor General Elena Kagan, nominated Monday to the Supreme Court by President Obama, told that court the Constitution gives Congress the authority to prohibit corporations from publishing pamphlets that advocate the election or defeat of a federal candidates.
Kagan’s argument that the government could prohibit political speech by corporations was rejected by a 5-4 majority of the Supreme Court in the case of Citizens United v. Federal Election Commission. Justice Anthony Kennedy wrote the majority opinion in that case, and in a scathing concurrence Chief Justice John Roberts took direct aim at Kagan’s argument that the government could ban political pamphlets.
“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,” wrote Roberts. “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.”
Justice Kennedy described the law Kagan had defended as an illegitimate attempt to use “censorship to control thought.”
“When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought,” Kennedy wrote in the majority opinion. “This is unlawful. The First Amendment confirms the freedom to think for ourselves.”
In March 2009, six months before Kagan told the court that the government could bar corporations from publishing political pamphlets, her deputy solicitor general, Malcolm Stewart, had gone further, telling the court the Constitution authorized Congress to prohibit corporations from publishing full-length books that included passages advocating the election or defeat of a candidate for federal office.
Kagan’s September statement that the government could ban pamphlets was meant to be a retreat from Stewart’s earlier position.
Stewart and Kagan both presented oral arguments to the court in the Citizens United case because the court took the unusual step of ordering the litigants to make their arguments twice. This was because the court decided after the initial round of oral arguments that it wanted to consider broader issues in the case than originally contemplated and perhaps roll back some of the recent precedents it had established on government regulation of political speech.
The immediate issue was whether Citizens United, a conservative non-profit corporation, could distribute a documentary—"Hillary: The Movie"—via Video On Demand, during the 2008 Democratic presidential primary season. The Federal Election Commission said it could not do so because the Bipartisan Campaign Reform Act of 2002 (BCRA, also known as the McCain-Feingold law) prohibited corporations from broadcasting “electioneering communications” within 30 days of a primary election and 60 days of a general election. “Electioneering communications” were defined as communications that mentioned the name of a candidate for federal office.
The case also examined a broader provision of campaign finance law, known as 441b, which prohibited corporations from spending any of their general treasury funds on speech that expressly advocated the election or defeat of a candidate. As the law stood, if a corporation wanted to express its views on political campaigns it had to start a separate Political Action Committee (PAC) and raise funds from contributors to do so.
The First Amendment to the Constitution says: “Congress shall make no law … abridging the freedom of speech, or of the press.”
In the first round of oral argument in Citizens United, which took place on March 24, five days after Kagan took office as solicitor general, Chief Justice Roberts, and Justices Anthony Kennedy, Samuel Alito and Antonin Scalia all questioned Deputy Solicitor General Malcolm L. Stewart, probing to discover where the Obama administration believed the First Amendment drew the line on government prohibitions on political speech.
Roberts asked Stewart if the government could prohibit a corporation from publishing a 500-page book that said at the end people should “vote for X.” Stewart said such a book could in fact be prohibited under federal election law because it was “express advocacy.” Then Roberts said he wanted to know what the administration’s position was on the constitutionality of that provision.
“Yes, our position would be that the corporation could be required to use PAC funds rather than general treasury funds [to publish the book],” said Stewart.
“And if they didn’t, you could ban it?” asked Roberts.
“If they didn't, we could prohibit the publication of the book using the corporate treasury funds,” said Stewart.
When the court heard oral arguments in the case again on Sept. 9, 2009, Kagan personally made the case for the administration. Justice Ruth Bader Ginsburg asked Kagan if the administration stood by its position that the government could ban books.
“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?” asked Ginsburg. “Last time the answer was, yes, Congress could, but it didn't. Is that--is that still the government's answer?”
Kagan told Ginsburg that the administration had changed its position. It now believed that although the law itself allowed the government to ban corporations from publishing books, it believed that if the government actually tried to do so a litigant would have a good case challenging that prohibition in court.
“The government's answer has changed, Justice Ginsburg,” said Kagan. “It is still true that BCRA [section] 203, which is the only statute involved in this case, does not apply to books or anything other than broadcast. 441b does, on its face, apply to other media. And we took what the Court--what the Court's--the Court's own reaction to some of those other hypotheticals very seriously. We went back, we considered the matter carefully, and the government's view is that although 441b does cover full-length books, that there would be quite good as-applied challenge to any attempt to apply 441b in that context."
Chief Justice Roberts, however, wanted to pin Kagan down on how far she believed the government could go in banning speech by corporations. He specifically asked her if the government could ban a pamphlet published by a corporation. She indicated the government could do that.
“If you say that you are not going to apply it to a book, what about a pamphlet?” asked Roberts.
“I think a pamphlet would be different,” said Kagan. “A pamphlet is pretty classic electioneering, so there is no attempt to say that 441b only applies to video and not to print.”
When President Obama announced Monday that he was nominating Kagan to the Court, he said that the Citizens United case was the first that she had argued before the court as solicitor general, and her decision to do so had been indicator of her “commitment to protect our fundamental rights.”
“I think it says a great deal about her commitment to protect our fundamental rights, because in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens,” said Obama.