Kagan's comments on the question of whether the First Amendment allows Congress to ban books under the guise of campaign finance reform were no more reassuring:
What we did in the Citizens United case was to defend the statute as it was written, which applied to all electioneering materials, with the single exception of books, which we told the court were not the kind of classic electioneering materials that posed the concerns that Congress had found to be posed by all electioneering materials of a kind of classic kind. Books are different. Books—you know, nobody uses books in order to campaign.
That claim is more than a little dubious, given all the biographies, manifestos, and public policy books that candidates and their supporters have produced over the years. More to the point, the distinction that Kagan drew between books, which maybe cannot be banned, and "pamphlets," which definitely can, is constitutionally untenable. As Hatch put it, "Do you believe that the protection of the First Amendment should depend on such things as the stiffness of a cover, the presence of a binder, or the number of words on a page?"
Tuesday, July 06, 2010
Jacob Sullum writes: