On Fox News, Citizens United president David Bossie falsely suggested that Solicitor General Elena Kagan argued in a Supreme Court case that “books could be banned.” In fact, Kagan specifically stated that federal campaign finance law had never banned books and likely could not do so.
From the May 10 edition of Your World with Neil Cavuto:
CAVUTO: Well, after all this, the president makes his pick. People already picking a fight. President Obama today nominating Solicitor General Elena Kagan for the Supreme Court. She battled my next guest in a case that became quite famous about campaign finance reform. She lost, and now he says she gets in, workers will be the ones to lose. David Bossie is president of Citizens United. This essentially boiled down, David, in your case to be about companies or causes or groups being able to spend whatever they want in political campaigns, the gist of it, right?
BOSSIE: Well, it was a about free speech, and it was a fundamental political speech, really the most protected of all speech by our Founding Fathers. Two hundred and twenty-five years of law, and she came out in oral arguments in our case before the Supreme Court and stated that books could be banned. And I am shocked by hearing that, and I'm surprised that Barack Obama chose her.
Kagan actually argued that federal campaign finance law likely could not ban books
The argument that campaign books paid for by corporate funds could be banned was made by a deputy solicitor general five days after Kagan was confirmed. Bossie's group was the plaintiff in Citizens United v. FEC, a Supreme Court case dealing with the constitutionality of the Federal Elections Commission's decision that Citizens United could not air a movie advocating against Hillary Clinton's presidential candidacy if that movie was paid for by federal funds. On March 24, 2009 -- five days after the Senate confirmed Kagan -- the Supreme Court heard oral arguments in the case. Deputy Solicitor General Malcolm Stewart stated during the oral argument that, in addition to a movie, the federal government could “prohibit the publication of [a] book using the corporate treasury funds” if that book ended by saying “vote for X.”
When the case was reargued, Kagan specifically argued that federal law had never banned books and likely could not do so. In June 2009, the Supreme Court decided to postpone its decision in Citizens United, asked the litigants to brief additional issues, and ordered the lawyers to reargue the case in September 2009. Kagan argued on behalf of the federal government. She stated that if the government tried to ban books under campaign finance laws, “there would be quite good as-applied challenge” to the law, meaning that the corporation attempting to publish the book would have a good constitutional case that the book couldn't be banned. Kagan later added: "[W]hat we're saying is that there has never been an enforcement action for books. Nobody has ever suggested -- nobody in Congress, nobody in the administrative apparatus has ever suggested that books pose any kind of corruption problem, so I think that there would be a good as-applied challenge with respect to that."