Last September, Solicitor General Elena Kagan presented the administration's second oral argument in the case. Justice Ruth Bader Ginsburg said to her: "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? Last time the answer was, yes, Congress could, but it didn't. Is that -- is that still the government's answer?"
Kagan said the administration's position had changed. Although 441b authorized the government to prohibit corporations from publishing books, the administration now believed that if it tried to apply the law in this way the corporation targeted by the censorship would have a good case in court against the government's action.
But Chief Justice Roberts wanted to know just how far the administration thought it could constitutionally go in using the 441b provision to censor political speech by corporations. "If you say that you are not going to apply it to a book, what about a pamphlet?" he asked Kagan.
"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."
Kagan was right about one thing. Pamphlets are a classic form for political speech. The Founding Fathers published many of them protesting the British Parliament's usurpation of their rights.
Chief Justice Roberts published his rejoinder to Kagan in the form of a concurring opinion in Citizens United.
"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," said 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."
Members of the Senate Judiciary Committee need to force Kagan to make extensive use of her faculty of speech in explaining why she believes government can shut people up.