Jeffrey Toobin Rewrites Supreme Court History—And His Own
9:05 AM, May 17, 2012 • By ADAM J. WHITE
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:
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:
But that's not right—that's not how Olson actually responded to Scalia's question.
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