So where, exactly, did Kagan say "it's fine if the law bans books because government won't really enforce it"?The closest any comment was to that statement was made by Scalia when he said "so you're 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."
russ said "So where, exactly, did Kagan say "it's fine if the law bans books because government won't really enforce it"?"Hmmm... bad ears, or stuff between the ears?In case your audio is out, here's the gist between :16 & 2:41---Kagan: The gov't view is that although 441b does cover full length books, that there would be a quite good as applied challenge applied to any attempt to apply 441b in that context, and I should say that the FCC has Never applied 441b in that context, so for 60 years a book has Never been an issue.Scalia: "What about the overbreadth doctrine?... If it's overbroad, it's invalid, what happened to that?"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 essentially nothing.Roberts: We don't put our first amendment rights in the hands of FEC bureaucrats....Kagan: 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 it would be a good as applied challenge with respect to that.Scalia: So, you're 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."---If you can't see the clear meaning there... best stick to the funny papers.
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