Beck misleads about Kagan's arguments on political books, pamphlets

From Media Matters Glenn Beck falsely suggested that Elena Kagan, in arguing before the Supreme Court that the government could ban "certain political pamphlets," would have banned Thomas Paine's pamphlets. In fact, she was arguing the government's case that pamphlets by corporations and unions could be restricted, not those by individual citizens

From the June 30 edition of Fox News' Glenn Beck: BECK: Finally, this one made my eyes and ears bleed. First time I saw this, I couldn't believe it. Solicitor General of the United States Elena Kagan argued in front of the Supreme Court that the federal government had the constitutional authority to ban certain political pamphlets. Tell that to Thomas Paine. She also strongly implied that some political books, if they were partisan enough, could also be censored. She argues that she really wouldn't have a problem with it because the law really would never be applied anyway. The law Kagan was arguing to uphold wouldn't apply to Paine or any individual Kagan actually argued that the government could restrict corporate pamphlets that advocated for the election or defeat of a candidate. The statute at issue in Citizens United v. FEC -- a case argued before the Supreme Court in September 2009, with Kagan as solicitor general arguing the Obama administration's side -- banned corporations and labor unions from making "a contribution or expenditure in connection with any election at which presidential and vice presidential electors or a Senator or Representative in, or a Delegate or Resident Commissioner to, Congress are to be voted for, or in connection with any primary election or political convention or caucus held to select candidates for any of the foregoing offices." It did not bar individuals from making any contributions or expenditures and, due to regulations passed by the Federal Election Commission in response to a prior Supreme Court ruling that Congress could not constitutionally limit expenditures that did not expressly advocate for the election or defeat of a statute, did not ban corporations from making contributions or expenditures unless, in the words of the regulation, "the communication is susceptible of no reasonable interpretation other than as an appeal to vote for or against a clearly identified Federal candidate." Paine pamphlet did not argue for the election or defeat of a candidate. Thomas Paine's most famous pamphlet, Common Sense, argues in favor of the American Revolution, against the British monarchy, and in favor a new system of government for the newly independent colonies. Kagan didn't endorse banning books Kagan specifically argued that federal law had never banned books and likely could not do so. Beck played a segment of Kagan's argument -- in which 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 -- to support his claim that Kagan "strongly implied that some political books, if they were partisan enough, could also be censored." Contrary to Beck's claim that Kagan was arguing that she "really wouldn't have a problem with it because the law really would never be applied anyway," Kagan was stating that the corporation attempting to publish the book would have a good constitutional case that the book couldn't be banned. Beck did not play audio from later in Kagan's argument in which she 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." Views Kagan argued as SG are not necessarily her own Legal experts say that Kagan's personal legal views can't be inferred from her actions as solicitor general. Pamela Harris, the head of Georgetown University's Supreme Court Institute, has said, "I don't think you can read almost anything" into the personal views of a solicitor general based on her representation of the United States. Lincoln Caplan, an expert on solicitors general, recently told The Washington Post, "It's a mistake to assume that every argument an SG makes on behalf of the government reflects her personal legal philosophy."