When the Obama administration first went to the Supreme Court in March 2009 to explain its understanding of the First Amendment, Deputy Solicitor General Malcolm Stewart said the administration believed the government could prohibit a corporation from bouncing a book off a satellite into someone's Kindle if that communication took place within 30 days of a primary or 60 days of a general election and if the book included words advocating the election or defeat of a candidate for federal office.
"Your position is that under the Constitution, the advertising for this book or the sale for the book itself could be prohibited within ... the 60/30-day period?" asked Justice Anthony Kennedy.
"If the book contained the functional equivalent of express advocacy," said Stewart.
"And I suppose," said Kennedy, "it could even -- is it the Kindle where you can read a book? I take it that's from a satellite. So the existing statute would probably prohibit that under your view?"
"Well, the statute applies to cable, satellite and broadcast communications," said Stewart.
"Just to make it clear," said Kennedy, "it's the government's position that under the statute, if this Kindle device where you can read a book which is campaign advocacy, within the 60/30-day period, if it comes from a satellite ... it can be prohibited under the Constitution and perhaps under this statute?
"It can't be prohibited, but a corporation could be barred from using its general treasury funds to publish the book and could be required ... to raise funds to publish the book using its PAC," said Stewart.
In other words, the Obama administration believes it can bar a publisher from electronically selling a book via satellite, cable or broadcast media in an election year if the book advocates throwing someone out of Congress or the White House.
To electronically publish such a book in Barack Obama's America, a publishing house would need to start a political action committee and get political contributors to donate money to fund the operation. No capitalism would be allowed in the business of publishing books that call for the defeat of federal officeholders.
As Stewart dug deeper into his explanation of the administration's understanding of the First Amendment, he was eventually interrupted by the ever-sardonic Justice Antonin Scalia.
"I'm a little disoriented here, Mr. Stewart," said Scalia. "We are dealing with a constitutional provision, are we not, the one that I remember which says Congress shall make no law abridging the freedom of the press? That's what we're interpreting here?
"That's correct," said Stewart.
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