Chief Justice Roberts: Kagan Asked Court To ‘Embrace Theory Of First Amendment That Would Allow Censorship Not Only Of Radio And Television, But Pamphlets And Posters’

Wednesday, May 12, 2010
By Paul Martin

By Terence P. Jeffrey
CNSNews.com

Solicitor General Elena Kagan, nominated Monday to the U.S. Supreme Court by President Barack Obama, told that court in September that Congress could constitutionally prohibit corporations from engaging in political speech such as publishing pamphlets that advocate the election or defeat of a candidate for federal office.

Kagan’s argument that the government could prohibit political speech by corporations was rejected by a 5-4 majority of the Supreme Court in the case of Citizens United v. Federal Election Commission. Justice Anthony Kennedy wrote the majority opinion in that case, and in a scathing concurrence Chief Justice John Roberts took direct aim at Kagan’s argument that the government could ban political pamphlets.

“The Government urges us in this case to uphold a direct prohibition on political speech. It asks us to embrace a theory of the First Amendment that would allow censorship not only of television and radio broadcasts, but of pamphlets, posters, the Internet, and virtually any other medium that corporations and unions might find useful in expressing their views on matters of public concern,” wrote Roberts. “Its theory, if accepted, would empower the Government to prohibit newspapers from running editorials or opinion pieces supporting or opposing candidates for office, so long as the newspapers were owned by corporations—as the major ones are. First Amendment rights could be confined to individuals, subverting the vibrant public discourse that is at the foundation of our democracy.”

Justice Kennedy described the law Kagan had defended as an illegitimate attempt to use “censorship to control thought.”

“When Government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought,” Kennedy wrote in the majority opinion. “This is unlawful. The First Amendment confirms the freedom to think for ourselves.”

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