Even a couple of years ago, who would have believed that we would be about to confirm a Supreme Court Justice who believed in banning books?
CHIEF JUSTICE ROBERTS: If it has one name, one use of the candidate's name, it would be covered, correct?
MR. STEWART: That's correct.
CHIEF JUSTICE ROBERTS: It's a 500-page book, and at the end it says, and so vote for X, the government could ban that?
MR. STEWART: Well, if it says vote for X, it would be express advocacy and it would be covered by the pre-existing Federal Election Campaign Act provision.
CHIEF JUSTICE ROBERTS: No, I'm talking about under the Constitution, what we've been discussing,
if it's a book. MR. STEWART: If it's a book and it is again, to leave -- to leave to one side the Official - Subject to Final Review produced -- question of.
CHIEF JUSTICE ROBERTS: Right, right. Forget the --
MR. STEWART: -- possible media exemption, if you had Citizens United or General Motors using general treasury funds to publish a book that said at the outset, for instance, Hillary Clinton's election would be a disaster for this --
CHIEF JUSTICE ROBERTS: Take my hypothetical. It doesn't say at the outset. It funds -- here is -- whatever it is, this is a discussion of the American political system, and at the end it says vote for X.
MR. STEWART: Yes, our position would be that the corporation could be required to use PAC funds rather than general treasury funds.
CHIEF JUSTICE ROBERTS: And if they didn't, you could ban it?
MR. STEWART: If they didn't, we could prohibit the publication of the book using the corporate treasury funds.
Ted Olson summarized the Obama administration's argument in the second oral arguments on the case on September 9, 2009.
THEODORE B. OLSON: The government admits that that radical concept of requiring public support for the speech before you can speak would even authorize it to criminalize books and signs. . . .
Here are the revised arguments that Kagan herself made where she backed away from the argument on books and argued that the current law only applied to short books (pamphlets) on September 9, 2009:
CHIEF JUSTICE ROBERTS: But we don't put our -- we don't put our First Amendment rights in the hands of FEC bureaucrats; and if you say that you are not going to apply it to a book, what about a pamphlet?
GENERAL KAGAN: I think a -- a pamphlet would be different. A pamphlet is pretty classic electioneering, so there is no attempt to say that 441 b only applies to video and not to print. . . .