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Justices May Trim Campaign Advertising Law
But his task seemed easier than that of Deputy Solicitor General Malcolm L. Stewart, who quickly found himself pulled into a discussion of something at issue in neither the law nor the case: whether the government could prevent using corporate or union funds to publish a book that mentioned a candidate for office within the election time frame.
Stewart said that it could, though he quickly added that there was an exception in the law for the media, and that the law said nothing about books.
"That's pretty incredible," said Justice Samuel A. Alito Jr.
And that set off a search for hypotheticals. Justice Anthony M. Kennedy wondered about Kindle, the electronic device. Roberts bore down.
"If it has one name, one use of the candidate's name, it would be covered, correct?" Roberts asked.
"That's correct," Stewart replied.
"It's a 500-page book, and at the end it says, 'And so vote for X,' the government could ban that?" Roberts asked again.
Stewart said again that he meant the restrictions on using corporate funds for what the law calls "electioneering communications" could come into play.
Kennedy and Justices Antonin Scalia and Clarence Thomas have said in past decisions that they did not think the restrictions on speech in the Campaign Reform Act could be squared with the First Amendment. But Roberts and Alito, at least in the 2007 case, were not ready to go that far.
If that remains their view, there could be two more-limited ways to rule for Citizens United.
One was advanced by Roberts, who indicted that he thought Congress had not considered documentaries when enacting the restrictions. He appeared skeptical of Stewart's reply that the length of the material did not matter and said that the court had never considered the question.
The other was offered by Scalia, who noted that Citizens United had wanted to make the film available on cable systems via video-on-demand, where viewers would have to make an affirmative decision to order it.
Maybe the law should allow the interest groups' speech when it is directed only at those who want to hear it, Scalia suggested.
"Do you think that there's a possibility that the First Amendment interest is greater when what the government is trying to stifle is not just a speaker who wants to say something," Scalia asked, "but also a hearer who wants to hear what the speaker has to say?"
The case is Citizens United v. Federal Election Commission.