The Obama Administration argued before the Supreme Court Tuesday that the government has the power to ban political books, signs, and YouTube videos. Alas, this is no joke:
By the end of an exceptionally lively argument at the Supreme Court on Tuesday, it seemed at least possible that five justices were prepared to overturn or significantly limit parts of the court’s 2003 decision upholding the McCain-Feingold campaign finance law, which regulates the role of money in politics.
Several of the court’s more conservative justices reacted with incredulity to a series of answers from a government lawyer about the scope of Congressional authority to limit political speech. The lawyer, Malcolm L. Stewart, said Congress has the power to ban political books, signs and Internet videos, if they are paid for by corporations and distributed not long before an election. . .
Justice Samuel A. Alito Jr. asked . . . whether a campaign biography in book form could be banned. Mr. Stewart said yes, so long as it was paid for with a corporation’s general treasury money, as opposed to its political action committee.
“That’s pretty incredible,” Justice Alito said. . .
Chief Justice John G. Roberts Jr. asked whether it would make a difference if a 500-page book had a single sentence in it that said “vote for X.” Then he asked about “a sign held up in Lafayette Park saying vote for so and so.”
If corporate money were used to pay for the book or the sign, Mr. Stewart said, Congress would have the power to ban them before elections.
The real culprit here is McCain-Feingold, which established the principle that the government could suppress speech based on extrinsic conditions such as how it was paid for. The First Amendment says Congress will make no law “abridging the freedom of speech, or of the press.” There is no proviso in the First Amendment saying that Congress can abridge freedom of speech in a manner that is not content-based. McCain-Feingold created that proviso, and the Supreme Court accepted it in the 5-4 McConnell v. FEC decision. (Wherein, incidentally, the majority was made up of the “liberal” justices.)
Once McCain-Feingold was upheld, the government had the power to ban speech. It was only a matter of time until the next step was taken, to extend the government’s speech-suppressing power from TV to other media. The Obama Administration has now taken that step.
The good news is that it seems the administration’s new censorship regime is too much for the Supreme Court to stomach. Several justices (the conservative justices and Souter) seemed horrified by the administration’s claim to have the power to ban books. It looks as though Deputy Solicitor General Stewart’s efforts may have backfired, and may even lead to a reconsideration of McCain-Feingold.
That would be good news. Ironically, the administration’s position might inadvertently end up as a big victory for free speech.
(More analysis here.)