Phenomenally interesting article about how Justice Roberts orchestrated the demise of McCain-Feingold. Sounds like the Deputy SG who argued the case for the government really stepped in it in response to Alito's probing question. Toobin believes
"Stewart was wrong. Congress could not ban a book. McCain-Feingold was based on the pervasive influence of television advertising on electoral politics, the idea that commercials are somehow unavoidable in contemporary American life. The influence of books operates in a completely different way. Individuals have to make an affirmative choice to acquire and read a book. Congress would have no reason, and no justification, to ban a book under the First Amendment."
And yet in the case before them one could argue that an individual had to make a conscious effort and "affirmative choice" to watch an on-demand video documentary on cable. A point that Vikram Amar also makes in his piece about the excerpt.
Read more http://www.newyorker.com/reporting/2012/05/21/120521fa_fact_toobin#ixzz1vKz3D9pW
There's a useful comment on Toobin's article at SCOTUS Blog by Tom Goldstein at
All this is very interesting stuff, but I must note that over the past year I have done a 180 on Citizens United and now take the position is was rightly decided which as an ostensible liberal makes me uncomfortable. Nevertheless. The First Amendment does makes it clear that Congress shall pass no law abridging.... As a staunch free speech absolutist (and let's not forget it was Hugo Black who invented textualism) I feel it's imperative for me to adopt the position that the First amendment means what it says and if you believe in the right of people to associate as organizations and unions those groups have a right to unfettered political speech. Let's not forget that Citizens United was about the right of a non-profit organization to promote a political video. That the Roberts Court chose to broaden the decision and apply it to corporations could be easily fixed by the legislature by simply making it plain that corporations don't have "personhood" rights. Of course the risk to that approach is in making the distinction between "good" and "bad" corporations which seems to be more driven by individual politics and the content of the corporate support rather than the character of the corporation, which I suspect is just what the Framers might have feared. So it's a conundrum that I feel generates heat because of corporate content not the nature of their being and that's a form of political speech suppression. Comments?