One of the big questions about Elena Kagan is whether, were she to mount the high bench, she would countenance the banning of books. The question of whether this would be possible arose in a hearing in a case involving campaign speech regulations, and an attorney from the government famously answered that, in theory, the Congress could ban the publication of certain books during certain periods of a campaign. It caused such an uproar that, when Solicitor General Kagan appeared before the Supreme Court to argue, in Citizens United v. Federal Election Commission, the government’s case for censoring a film critical of Hillary Clinton, Justice Ginsburg asked General Kagan about the matter. Here is the transcript:

Justice Ginsburg: May I ask you one question that was highlighted in the prior argument, and that was if Congress could say no TV and radio ads, could it also say no newspaper ads, no campaign biographies? Last time the answer was, yes, Congress could, but it didn’t. Is that is that still the government’s answer?

General Kagan: —The government’s answer has changed, Justice Ginsburg. [Laughter] It is still true that [the Bipartisan Campaign Reform Act Section 203], which is the only statute involved in this case, does not apply to books or anything other than broadcast; 441b does, on its face, apply to other media. And we took what the Court (.) what the Court’s (.) the Court’s own reaction to some of those other hypotheticals very seriously. We went back, we considered the matter carefully, and the government’s view is that although 441b does cover full-length books, that there would be quite good as-applied challenge to any attempt to apply 441b in that context. And I should say that the [Federal Election Commission] has never applied 441b in that context.So for 60 years a book has never been at issue.

At this point, Justice Scalia asked what happened to something called the overbreadth doctrine, which holds that if a law is too broadly written, the courts don’t “pare it back to the point where it’s constitutional” but instead toss out the whole law. “If it’s overbroad, it’s invalid,” he said. “What has happened to that?” Here’s the exchange that followed:

General Kagan: I don’t think that it would be substantially overbroad, Justice Scalia, if I tell you that the FEC has never applied this statute to a book. To say that it doesn’t apply to books is to take off, you know, essentially nothing.

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.

It does —

Justice Alito: Well, what if the particular, what if the particular movie involved here had not been distributed by Video on Demand? Suppose that people could view it for free on Netflix over the internet?

Suppose that free DVDs were passed out. Suppose people could attend the movie for free in a movie theater; suppose the exact text of this was distributed in a printed form. In light of your retraction, I have no idea where the government would draw the line with respect to the medium that could be prohibited.

General Kagan: –Well, none of those things, again, are covered.

Justice Alito: No, but could they? Which of them could and which could not? I understand you to say books could not.

General Kagan: Yes, I think what you, what 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.

Justice Scalia: So you’re, you are a lawyer advising somebody who is about to come out with a book and you say don’t worry, the FEC has never tried to send somebody to prison for this. This statute covers it, but don’t worry, the FEC has never done it. Is that going to comfort your client? I don’t think so.

Justice Ginsburg: But this, this statute doesn’t cover. It doesn’t cover books.

General Kagan: No, no, that’s exactly right. The only statute that is involved in this case does not cover books.

So 441b which —

Chief Justice Roberts: Does cover books.

General Kagan: — which does cover books, except that I have just said that there would be a good as-applied challenge and that there has been no administrative practice of ever applying it to the books.

And also only applies to express advocacy, right?

203 has (.) is (.) is (.) has a broader category of the functional equivalent of express advocacy, but 441b is only express advocacy, which is a part of the reason why it has never applied to a book.

One cannot imagine very many books that would meet the definition of express advocacy as this Court has expressed that.

Chief Justice Roberts: Oh, I’m sorry, we suggested some in the last argument. You have a history of union organizing and union involvement in politics, and the last sentence says in light of all this, vote for Jones.

General Kagan: I think that that wouldn’t be covered, Mr. Chief Justice. The FEC is very careful and says this in all its regulations to view matters as a whole. And as a whole that book would not count as express advocacy.

Chief Justice Roberts: Thank you, General.

Let us just say that these columns have been covering the courts since 1933, and it’s hard to recall an exchange before the high bench more unsettling in respect of our basic liberty to conduct a free and robust election debate. There have been times, for sure, when the Supreme or lower courts have been asked about curbing speech and heard a restrictionist line from the government — in matters involving pornography, say, or communistic type subversion through the mails or telephone calls from terrorists. But it’s hard to recall the First Amendment hanging by a gossamer as flimsy as that offered by General Kagan.

Nor is this just any case. This is the case over which President Obama, during his state of the union speech, brought the Democratic Party majority in the Congress to its feet to hoot and holler and denounce the justices of the Supreme Court, as they sat their stoically and politely. This is the case the president has said he would have a litmus test for a Supreme Court nominee. Ask any construction worker on an I-beam, any farmer in a field, or grease monkey in a garage, and we’ll wager that he or she could do a better job defending the First Amendment than did, for all her illustrious education and magnificent credentials, Ms. Kagan before the high bench.