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Jeffrey Toobin Rewrites Supreme Court History—And His Own

9:05 AM, May 17, 2012 • By ADAM J. WHITE
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Toobin knows all of this, of course, because he made the very same points, on national television. The morning of oral argument, he appeared on CNN to discuss the case (transcript here; video here.):

Well, this is part of a struggle that's been going on at the Supreme Court and in Congress for a long time. Because on the one hand you have the desire to regulate campaign finance to bring some order and fairness to that system. On the other hand you have the risk of censorship. 

... I would guess, I think it's probably going to be a close case, but I think Citizens United has a pretty good case here and I think they may well win and the court will either say you have to come up with another way to regulate or this kind of regulation is just simply unconstitutional.

In short, when Citizens United v. FEC arrived at the Supreme Court, everyone—even Jeffrey Toobin—knew the constitutional stakes riding on the case. Toobin's new essay tries to erase all of that.  Why does he open his story with such a clumsy fictionalization of the case? To set Chief Justice Roberts up as the man responsible for turning Citizens United v. FEC into a seminal case.

Toobin's effort does not end with the initial scene setting. Proceeding to oral argument, Toobin suggests that Ted Olson, counsel for Citizens United, urged the Court to avoid the First Amendment question altogether:  

In response to Souter’s questions, Olson made a key point about how he thought the case should be resolved. In his view, the prohibitions in McCain-Feingold applied only to television commercials, not to ninety-minute documentaries. “This sort of communication was not something that Congress intended to prohibit,” Olson said. This view made the case even more straightforward. Olson’s argument indicated that there was no need for the Court to declare any part of the law unconstitutional, or even to address the First Amendment implications of the case. Olson simply sought a judgment that McCain-Feingold did not apply to documentaries shown through video on demand.

Again, to anyone familiar with the case, this description of Olson's argument does not pass the laugh test. Far from minimizing the case's constitutional stakes, Ted Olson and Citizens United made the First Amendment the centerpiece of their opening brief. In the very title of the lead argument, Olson's brief argued that McCain-Feingold's corporate campaign speech restriction "IS UNCONSTITUTIONAL AS APPLIED TO THE DISTRIBUTION OF CITIZENS UNITED’S DOCUMENTARY FILM THROUGH VIDEO ON DEMAND."  

And Olson's reply brief reiterated this point: "As applied to Video On Demand dissemination of Hillary: The Movie, BCRA’s criminalization of election-related debate plainly exceeds Congress’s sharply limited authority to abridge the freedom of speech."

In the face of the briefs, Toobin attempts to advance his own narrative by selectively quoting from Olson's oral argument, and omitting Olson's comments that disprove Toobin's point. Take, for example, Toobin's account of an exchange between Olson and Justice Scalia, which ends with Toobin paraphrasing—but not quoting—Olson's final rejoinder:

Scalia was disappointed by the limited nature of Olson’s claim.  

“So you’re making a statutory argument now?” Scalia said.

“I’m making a—” Olson began.

“You’re saying this isn’t covered by it,” Scalia continued.

That’s right, Olson responded.

But that's not right—that's not how Olson actually responded to Scalia's question.  

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