No. 08-205

IN THE

Supreme Court of the United States

CITIZENS UNITED,

Appellant,

—v.—

FEDERAL ELECTION COMMISSION,

Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

BRIEF OF AMICI CURIAE

HACHETTE BOOK GROUP, INC. AND 

HARPERCOLLINS PUBLISHERS L.L.C.

IN SUPPORT OF NEITHER PARTY 

ON SUPPLEMENTAL QUESTIONS 

MICHAEL J. CHEPIGA

Counsel of Record

JAMES G. GAMBLE

JANET WHITTAKER

AGNÈS DUNOGUÉ

MICHELLE L. HERTZ

LUCIAN C. MARTINEZ, JR.

HAYLEY M. URKEVICH

SIMPSON THACHER & BARTLETT LLP 

425 Lexington Avenue

New York, New York 10017

(212) 455-2000

Counsel for Amici Curiae

d
i

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ............................... 1

SUMMARY OF THE ARGUMENT........................... 4

ARGUMENT .............................................................. 5

I. BCRA SECTION 203 DOES NOT 

APPLY TO BOOKS EVEN IF 

DISTRIBUTED VIA ELECTRONIC 

READER DEVICES SUCH AS AN 

AMAZON KINDLE ......................................... 5

A. BCRA Section 203 Does Not 

Apply to Books ....................................... 5

B. A Book Distributed to an 

Electronic Book Reader Device 

such as an Amazon Kindle Is 

Not a “Broadcast, Cable, or 

Satellite Communication” 

Subject to BCRA Section 203 ................ 8

II. NEITHER AUSTIN NOR 

MCCONNELL SUPPORTS THE 

AUTHORITY OF THE 

GOVERNMENT UNDER THE

CONSTITUTION TO REGULATE 

BOOKS CONTAINING ELECTORAL 

ADVOCACY................................................... 10
ii

A. The Only Compelling Interest 

that May Justify Restricting 

Electoral Advocacy Is 

Preventing Corruption or the 

Appearance of Corruption in the 

Electoral Process.................................. 10

B. The Holding in McConnell Is 

Predicated on the Finding that 

a Certain Form of 

Communication—Broadcast 

Advertisements—Poses a Real 

Risk of Corruption ............................... 13

C. Because Books Do Not Have a 

Distorting Effect on the 

Electoral Process, Neither 

Austin nor McConnell Permits 

Imposing Restrictions on Books 

Containing Electoral Advocacy ........... 15

CONCLUSION..................................................19
iii

TABLE OF AUTHORITIES

Page(s)

CASES

Austin v. Mich. Chamber of Commerce, 494 

U.S. 653 (1990) .....................................passim

Buckley v. Valeo, 424 U.S. 1 (1976)....................... 10

Carcieri v. Salazar, 129 S.Ct. 1058 (2009).............. 5

FCC v. Pacifica Found., 438 U.S. 726 (1978)........ 17

FEC v. Mass. Citizens for Life, Inc. 479 U.S. 

238 (1986) .............................................. 11, 16

FEC v. Nat’l Conservative Political Action 

Comm., 470 U.S. 480 (1985)............ 10, 11, 12 

McConnell v. FEC, 540 U.S. 93 (2003)...........passim

McConnell v. FEC, 251 F. Supp. 2d 176 

(D.D.C. 2003) ......................................... 14, 15

Reno v. ACLU, 521 U.S. 844 (1997)................. 16, 17

Sable Comm’n of Cal., Inc. v. FCC, 492 U.S. 

115 (1989) .................................................... 17

Se. Promotions, Ltd. v. Conrad, 420 U.S. 546 

(1975) ........................................................... 16
iv

Page(s)

STATUTES

2 U.S.C. § 431........................................................... 2

2 U.S.C. § 434(f)(3)(A)(i)................................... 4, 5, 8

2 U.S.C. § 441b......................................................... 2

2 U.S.C. § 441b(b)(2) ................................................ 5

Alaska Stat. § 15.13.400 .......................................... 6

Cal. Elec. Code § 304................................................ 6

Conn. Gen. Stat. Ann. § 9-601b............................... 6

Fla. Stat. Ann. § 106.011(13)................................... 6

Haw. Rev. Stat. § 11-207.6(c) .................................. 6

Idaho Code Ann. § 67-6602(f) .................................. 6

10 Ill. Comp. Stat. Ann. 5/9-1.14............................. 6

Me. Rev. Stat. Ann. tit. 21-A, § 1014(2-A)............... 6

Okla. Stat. tit. 74, § 257:1-1-2 ................................. 6

S.C. Code Ann. § 8-13-1300(31)............................... 6

Vt. Stat. Ann. tit. 17, § 2891.................................... 6

W. Va. Code Ann. § 3-8-1a(12)(A)............................ 6
v

Page(s)

Wash. Rev. Code Ann. § 42.17.020.......................... 6

REGULATIONS

11 C.F.R. § 100.29(a)................................................ 8

11 C.F.R. § 100.29(b)(1) ........................................... 8

11 C.F.R. § 100.29(c)(1)........................................ 6, 9

OTHER AUTHORITIES

Kindle – Features – Enhanced ReadingTM, 

http://www.amazon.com/KindleAmazons-Wireless-ReadingGeneration/dp/B00154JDAI.......................... 7

Kindle Features – Wireless Access with 

Whispernet, 

http://www.amazon.com/KindleAmazons-Wireless-ReadingGeneration/dp/B00154JDAI.......................... 8

Priya Ganapati, E-Book Reader Roundup: 

Samsung's Papyrus Joins the Crowd, 

Wired, Mar. 25, 2009..................................... 9

Priya Ganapati, Plastic Logic E-Book Reader 

to Use AT&T Wireless, Wired, Jul. 22, 

2009................................................................ 9
vi

Page(s)

Product Description – Introducing KindleTM, 

http://www.amazon.com/KindleAmazons-Original-Wirelessgeneration/dp/B000FI73MA.......................... 8
1

INTEREST OF AMICI CURIAE1

Amici curiae, Hachette Book Group, Inc. 

(Hachette Book Group) and HarperCollins 

Publishers L.L.C. (HarperCollins), are publishing 

companies that publish books on a wide range of 

subjects, including books about electoral campaigns 

and candidates for elected office, and books written 

by political figures. Hachette Book Group is a 

leading trade publisher based in New York and a 

division of Hachette Livre, the second largest book 

publisher in the world. Hachette Book Group 

publishes about 600 books per year. HarperCollins 

Publishers L.L.C. (HarperCollins) is one of the 

world’s leading publishers. HarperCollins is based 

in New York and is a subsidiary of News 

Corporation. The company publishes under the 

divisions of HarperCollins General Books Group–

U.S., HarperCollins Children’s Books Group–U.S., 

HarperCollins U.K., HarperCollins Canada, 

HarperCollins Australia, HarperCollins India, 

HarperCollins New Zealand, and Zondervan. 

1 The parties have consented to the filing of this brief. 

No counsel for a party prepared this brief in whole or 

in part, and no counsel or party made a monetary 

contribution intended to fund the preparation or 

submission of this brief. No person other than amici 

curiae or their counsel made a monetary contribution 

to its preparation or submission.
2

HarperCollins’ revenues exceed $1 billion each 

year.

This case is about a film, not a book. 

However, the issue of the government’s power to 

regulate the publication of books referring to 

candidates for federal office, or containing “express 

advocacy” or the “functional equivalent of express 

advocacy,” was raised at Oral Argument before the 

Court. Specifically, the Deputy Solicitor General 

responded to hypothetical inquiries from the Court 

by contending that: (1) books downloaded for 

reading onto an Amazon Kindle electronic reader 

device are subject to Section 203 of the Bipartisan 

Campaign Reform Act of 2002 (BCRA), 2 U.S.C. § 

441b (2005), Tr. 28:21-29:18; (2) books that include 

express advocacy or its functional equivalent could 

be subject to pre-existing provisions of the Federal 

Election Campaign Act of 1971 (FECA), 2 U.S.C. § 

431 et seq. (2005), such that “a corporation could be 

barred from using its general treasury funds to 

publish the book,” Tr. 29:10-14; see also Tr. 31:14-

32:7; and (3) more generally, that the interest in 

preventing corruption of the electoral process 

permits Congress to require corporations, which 

publish books that include either express advocacy 

or its functional equivalent, to fund those books 

through segregated funds or a political action 

committee (PAC). Tr. 27:15-31:1. 

Any regulation of books directly implicates 

and affects amici’s rights and interests. Amici are 
3

key players in the marketplace of ideas who 

publish books about electoral campaigns and 

candidates in the ordinary course of their business, 

in which they do not serve as conduits for the type 

of campaign-related spending that may create a 

threat to the political marketplace. If the Deputy 

Solicitor General’s responses to the Court’s 

hypothetical questions were correct, book 

publishers would need to make significant changes 

to their business models and practices, for example, 

to establish special segregated funds for the 

writing, advertisement, publication and 

distribution of any book that included electoral 

speech. They are not correct. The Deputy Solicitor 

General’s responses depart from statutory and 

constitutional law, as well as regulatory practice to 

date. 

In its supplemental briefing, the government 

appears to soften its positions. Amici note, 

however, that the government’s supplemental 

briefing does not explicitly revise the statements 

made during Oral Argument in connection with 

books. Consequently, amici consider it important 

to articulate for the Court why those statements 

are inconsistent with the relevant statutory 

language and implementing regulations, and are 

not supported by Austin v. Michigan Chamber of 

Commerce, 494 U.S. 653 (1990), or McConnell v. 

FEC, 540 U.S. 93 (2003).
4

SUMMARY OF THE ARGUMENT

The question now before the Court is 

whether the Court should overrule either Austin or 

the part of McConnell that addresses the facial 

validity of BCRA Section 203. Amici respectfully 

submit that it is not necessary for the Court to 

overrule either Austin or the relevant part of 

McConnell in order to guarantee the constitutional 

protection of electoral speech in books, whether in 

printed form or downloaded onto an Amazon Kindle 

or similar device. Specifically, amici submit that: 

(1) books are plainly exempted from BCRA Section 

203, such that there is no reason for the Court to 

consider Austin or McConnell in connection with 

this issue; and (2) even if the Court were to visit 

the broader constitutional inquiry about the 

government’s authority to regulate books 

containing electoral speech, neither Austin nor 

McConnell entails or permits the potential 

imposition of restrictions on books. 

As an initial matter, as the Deputy Solicitor 

General conceded, Section 203 of BCRA on its face 

does not apply to paper-printed books. Tr. 35:24-

36:5. Section 203 is also inapplicable to books 

distributed via an electronic reader device, such as 

an Amazon Kindle, because such books are not 

“broadcast, cable, or satellite communication[s].” 2 

U.S.C. § 434(f)(3)(A)(i) (2005). 
5

Further, nothing in either Austin or 

McConnell supports the extension to books of the 

government’s authority to regulate electioneering 

communications. Books present none of the 

features associated with the media that McConnell 

addresses. Unlike other forms of media deemed to 

present the greatest risk of corruption, books 

require a willing reader who “opts in” to seeking, 

acquiring and reading the book. Accordingly, 

neither Austin nor McConnell supports the claim 

that Congress may constitutionally regulate books. 

ARGUMENT

I. BCRA SECTION 203 DOES NOT APPLY 

TO BOOKS EVEN IF DISTRIBUTED 

VIA ELECTRONIC READER DEVICES 

SUCH AS AN AMAZON KINDLE 

A. BCRA Section 203 Does Not Apply 

to Books 

Section 203 of BCRA prohibits corporations 

from using their general corporate treasury funds 

to finance “electioneering communications,” 2 

U.S.C. § 441b(b)(2), which are defined as “any 

broadcast, cable, or satellite communication” that 

meets certain criteria. Id. § 434(f)(3)(A)(i). Where 

“the statutory text is plain and unambiguous,” the 

statute must be applied “according to its terms.” 

Carcieri v. Salazar, 129 S.Ct. 1058, 1063-64 (2009). 

By its plain, unambiguous language, BCRA Section 

203 does not apply to paper-printed books. The 
6

BCRA’s implementing regulations further confirm 

that BCRA Section 203 does not apply to paperprinted books. See 11 C.F.R. § 100.29(c)(1) (2009)

(“[E]lectioneering communication does not include 

communications appearing in print media . . . .”).2

A book distributed to an electronic reader 

device, such as an Amazon Kindle, is equally 

excluded from the scope of BCRA Section 203. 

Such a book is, quite simply put, a book; it consists 

of a large number of successive words rendered on a 

flat surface. Books downloaded onto electronic 

reader devices are not fundamentally different from 

paper-printed books; indeed, many such devices 

2 “Electioneering communications” has also been 

defined by at least 13 states to include some forms of 

non-broadcast communications, including billboards, 

pamphlets, paid print advertising, where such 

communications are targeted at an election, appear 

close in time to that election, clearly identify a 

candidate, and incur cost over a specified threshold. 

None of these expanded state definitions includes 

books. Alaska Stat. § 15.13.400 (2009); Cal. Elec. 

Code § 304 (West 2009); Conn. Gen. Stat. Ann. § 9-

601b (West 2009); Fla. Stat. Ann. § 106.011(13) (West 

2009); Haw. Rev. Stat. § 11-207.6(c) (2009); Idaho 

Code Ann. § 67-6602(f) (2009); 10 Ill. Comp. Stat. 

Ann. 5/9-1.14 (West 2009); Me. Rev. Stat. Ann. tit. 21-

A, § 1014(2-A) (2009); Okla. Stat. tit. 74, § 257:1-1-2 

(2009); S.C. Code Ann. § 8-13-1300(31) (2008); Vt. 

Stat. Ann. tit. 17, § 2891 (2008); Wash. Rev. Code 

Ann. § 42.17.020 (West 2009); W. Va. Code Ann. § 3-8-

1a(12)(A) (West 2009).
7

have been designed to look and feel as much like 

paper-printed books as possible. See, e.g., Kindle –

Features – Enhanced ReadingTM, 

http://www.amazon.com/Kindle-Amazons-WirelessReading-Generation/dp/B00154JDAI (last visited 

July 30, 2009) (“Utilizing the latest in electronic-ink

display technology, Kindle provides a crisp blackand-white 6” screen with the same appearance and 

readability of printed paper.”). Much like a paperprinted book, the reader must flip each page of the 

book on an Amazon Kindle, in this case by 

punching an electronic button. Most importantly, 

the reader must choose to read the book in question 

and take an affirmative action—purchasing and 

downloading the book—in order to read it. The 

content of a book cannot be pushed onto an 

unwilling reader in the manner in which, for 

example, a television or radio advertisement might. 

The process of acquiring a book on an Amazon 

Kindle is similar to acquiring a physical book; the 

consumer—much like going to a bookstore or 

visiting Amazon.com on the Internet—must go to 

the “store” on the wireless reader device and decide 

which book to buy and read. 
8

B. A Book Distributed to an 

Electronic Book Reader Device 

such as an Amazon Kindle Is Not a 

“Broadcast, Cable, or Satellite 

Communication” Subject to BCRA 

Section 203

In any event, a book distributed to an 

electronic reader device is not a “broadcast, cable, 

or satellite communication.” 2 U.S.C. § 

434(f)(3)(A)(i); 11 C.F.R. § 100.29(a), (b)(1). Books 

are not “publicly distributed by a television station, 

radio station, cable television system, or satellite 

system,” 11 C.F.R. § 100.29(b)(1), to electronic book 

reader devices. Rather, a book is downloaded onto 

an electronic reader device, either wirelessly 

(through high-speed wireless data networks such as 

those provided by Sprint and AT&T) or through 

computers, via the Internet. See Product 

Description – Introducing KindleTM, 

http://www.amazon.com/Kindle-Amazons-OriginalWireless-generation/dp/B000FI73MA (last visited 

July 30, 2009) (“Using the same 3G network as 

advanced cell phones, [Amazon] deliver[s] your 

content using our own wireless delivery system . . . 

.”); Kindle Features – Wireless Access with 

Whispernet, http://www.amazon.com/KindleAmazons-Wireless-ReadingGeneration/dp/B00154JDAI (last visited July 30, 

2009) (explaining that “books . . . are delivered [to 

the Kindle] via Whispernet,” which “utilizes 

Amazon’s optimized technology plus Sprint’s 
9

national high-speed (3G) data network to enable 

you to wirelessly . . . download content”); Priya 

Ganapati, Plastic Logic E-Book Reader to Use 

AT&T Wireless, Wired, Jul. 22, 2009, 

http://www.wired.com/gadgetlab/2009/07/plasticlogi

c-att/ (“Electronic books reader manufacturer 

Plastic Logic announced . . . that it will offer 

wireless access in its upcoming devices through 

AT&T’s 3G network . . . .”); Priya Ganapati, E-Book 

Reader Roundup: Samsung’s Papyrus Joins the 

Crowd, Wired, Mar. 25, 2009, 

http://wired.com/gadgetlab/2009/03/samsungs-newe (noting which electronic book reader devices allow 

for wireless downloads of books, and which such 

devices must be connected to Internet-enabled 

computers to allow such downloads). 

Pursuant to the express terms of the BCRA 

implementing regulations, Section 203 does not 

cover communications that are “publicly 

disseminated through a means of communication 

other than a broadcast, cable, or satellite television 

or radio station.” 11 C.F.R. § 100.29(c)(1). Thus, 

books downloaded onto an electronic reader device 

are exempt from Section 203. The implementing 

regulations exempt, even more explicitly, 

“communications over the Internet . . . or telephone 

communications,” 11 C.F.R. § 100.29(c)(1)3—

3 The government recognizes, as it must, that “the 

restrictions imposed by BCRA Section 203 . . . are 

limited to broadcast media and do not apply to . . . the 

Internet.” (Appellee Br. at 25-26.)
10

categories that broadly include the transmission of 

books to electronic reader devices (via wireless 

networks or computers connected to the Internet), 

described above. In short, under the plain 

language of the statute and its implementing 

regulations, books—whether in paper or electronic 

form—are not subject to BCRA Section 203. 

II. NEITHER AUSTIN NOR MCCONNELL

SUPPORTS THE AUTHORITY OF THE 

GOVERNMENT UNDER THE

CONSTITUTION TO REGULATE 

BOOKS CONTAINING ELECTORAL 

ADVOCACY 

A. The Only Compelling Interest that 

May Justify Restricting Electoral 

Advocacy Is Preventing 

Corruption or the Appearance of 

Corruption in the Electoral 

Process

The Court has long recognized that political 

speech, including independent expenditures in 

connection with elections, is “at the core of our 

electoral process and of the First Amendment 

freedoms.” Buckley v. Valeo, 424 U.S. 1, 39 (1976); 

see also FEC v. Nat’l Conservative Political Action 

Comm., 470 U.S. 480, 493 (1985) (independent 

expenditures “produce speech at the core of the 

First Amendment”). Any restriction on political 

speech, including electoral advocacy, is therefore 
11

subject to strict scrutiny; such speech may be 

burdened only if the government proves that the 

burden is justified by a compelling interest and is 

narrowly tailored to achieve that interest. See, e.g., 

FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238, 

252 (1986) (“We must therefore determine whether 

the prohibition of § 441b burdens political speech, 

and, if so, whether such a burden is justified by a 

compelling state interest.”); id. at 256 (“When a 

statutory provision burdens First Amendment 

rights, it must be justified by a compelling state 

interest.”).

The Court has found only one compelling 

government interest capable of justifying a 

restriction on campaign-related speech, namely, the 

interest in combating corruption or the appearance 

of corruption. See Nat’l Conservative Political 

Action Comm., 470 U.S. at 496-97 (“[P]reventing 

corruption or the appearance of corruption are the 

only legitimate and compelling government 

interests thus far identified for restricting 

campaign finances.”); accord Austin, 494 U.S. at 

658. The Court has noted that “[c]orruption is a 

subversion of the political process.” Nat’l 

Conservative Political Action Comm., 470 U.S. at 

497. 

In one formulation, the Court articulated the 

anti-corruption interest as preventing the “danger 

of ‘financial quid pro quo’ corruption.” Austin, 494 

U.S. at 659 (quoting Nat’l Conservative Political 
12

Action Comm., 470 U.S. at 497); see also Nat’l 

Conservative Political Action Comm., 470 U.S. at 

497 (“The hallmark of corruption is the financial 

quid pro quo: dollars for political favors.”). In 

Austin, the Court found that the anti-corruption 

interest also includes curbing the “corrosive and 

distorting effects of immense aggregations of 

wealth that are accumulated with the help of the 

corporate form and that have little or no correlation 

to the public’s support for the corporation’s political

ideas.” Austin, 494 U.S. at 660. In formulating this 

type of “corruption in the political arena,” id., the 

Court made clear that its concern was that 

“[c]orporate wealth can unfairly influence elections 

when it is deployed in the form of independent 

expenditures, just as it can when it assumes the 

guise of political contributions.” Id. Thus, in 

Austin, the Court’s recognition of a compelling 

government interest, which validates restrictions 

on corporations’ speech in connection with 

elections, continued to focus on the danger that 

such speech might unduly affect the electoral 

process. 

Although the Court in Austin identified the 

single interest deemed to be sufficiently compelling 

to justify restrictions on express advocacy, as the 

government implicitly recognizes here, the Court 

did not identify which forms and media of electoral 

advocacy invoke that interest. (See Appellee Suppl. 

Br. at 18 (noting that “the Court did not delineate 

precisely which corporate-funded communications 
13

can properly be treated as electioneering”).) As 

discussed below, at no time has a link between 

books and corruption of the electoral process been 

asserted, much less established.

B. The Holding in McConnell Is 

Predicated on the Finding that a 

Certain Form of Communication—

Broadcast Advertisements—Poses 

a Real Risk of Corruption

McConnell’s holding—that certain forms of 

corporate communications constituting the 

functional equivalent of express advocacy cannot be 

financed via general treasury funds—rests entirely 

on the corrosive effect of the specific forms of 

communications at issue in that case. In upholding 

BCRA Section 203 against a facial challenge in 

McConnell, the Court held that a compelling anticorruption interest justified the regulation of 

certain broadcast, cable and satellite 

communications that constitute express advocacy 

or its functional equivalent. McConnell, 540 U.S. 

at 205-07. The Court found that “[t]he records 

developed in this litigation and by the Senate 

Committee adequately explain the reasons for th[e] 

legislative choice” of regulating these forms of 

communication and not others, insofar as 

“Congress found that corporations and unions used 

soft money to finance a virtual torrent of televised 

election-related ads during the periods immediately 

preceding federal elections, and that remedial 
14

legislation was needed to stanch that flow of 

money.” Id. at 207.4

Indeed, the district court, having examined 

the “elephantine” record, McConnell v. FEC, 251 F. 

Supp. 2d 176, 209 n. 40 (D.D.C. 2003), found that 

corporate-funded broadcast, cable and satellite 

communications are “the most potent form of 

advertising,” id. at 645, in part because 

“advertisements on television and radio are aired 

throughout programming without any viewer 

choice,” id. at 571. Contrasting broadcast 

advertising with other forms of media (including 

newspapers, the Internet, and direct mail), the 

district court concluded that those other media are 

not as effective as broadcast advertising in 

communicating an electioneering message to a 

mass audience, and, consequently, are not as 

problematic. Id. at 569-73.5

4 Cf. McConnell, 540 U.S., at 185 (in upholding another 

FECA provision, finding that “[t]he proliferation of 

sham issue ads has driven the soft-money explosion,” 

and that “[t]he argument . . . that soft-money 

contributions to state and local candidates for ‘public 

communications’ do not corrupt or appear to corrupt 

federal candidates ignores . . . the record in this 

litigation”).

5 Specifically, the district court: (i) did “not find that the 

Internet is now, or was, a comparable medium to 

television and radio broadcast advertising,” 

McConnell, 251 F. Supp. 2d at 572; (ii) found that 

“there is no evidence in the record that [direct mail] is 
15

C. Because Books Do Not Have a 

Distorting Effect on the Electoral 

Process, Neither Austin nor 

McConnell Permits Imposing 

Restrictions on Books Containing 

Electoral Advocacy 

The compelling interest in preventing the 

“virtual torrent of televised election-related ads 

during the periods immediately preceding federal 

elections,” used to bombard unwilling recipients 

repeatedly with an electoral message, is simply not 

present with regard to books—no matter how they 

are purchased. A book requires its reader to “opt 

in” at two separate levels. First, the reader must 

affirmatively choose to acquire the book, whether 

through purchasing it in hard copy or as an 

electronic download to be read on a computer 

screen or an electronic reader device. Second, the 

reader must be motivated to read the book, and to 

absorb its message. Thus, a book is a form of 

communication that requires a significant element 

of “audience choice” in order for the message 

nearly as effective as broadcast advertising” and that, 

consequently, direct mail is not “as problematic as 

broadcast candidate-centered issue advertising,” id. at 

572; and (iii) did “not find newspaper advertising to be 

as effective as candidate-centered issue 

advertisements broadcast on radio and television,” id.

at 572, and accordingly did “not find that newspaper 

advertising poses a comparable problem to that of 

broadcast advertisements,” id. at 573.
16

embedded in the communication to be transmitted. 

There are no unwilling recipients of a book’s 

message; if a reader does not like it, she simply 

shuts the cover.6 In addition, the significant 

investment of time required for the creation, 

production and distribution of books renders them 

an inherently less immediate and potent medium 

for the communication of electoral advocacy shortly 

before an election.7

6 Books typically are not distributed in free-of-charge 

mass-mailings sent to members of the public, by 

contrast with the newsletter at issue in FEC v. Mass. 

Citizens for Life, Inc. In that case, the Court held that 

a corporation’s newsletter—which was “mailed free of 

charge and without request” to tens of thousands of 

individuals “regarded as sympathetic to the 

organization’s purposes”—would be subject to 2 

U.S.C. § 441b, but that Section 441b was 

unconstitutional as applied to appellee. 479 U.S. 238, 

241, 244 (1986). That case does not stand for the 

broad proposition that Section 441b may 

constitutionally be applied to books published by 

publishers like amici.

7 In considering whether certain governmental 

restrictions on speech (in contexts other than electoral 

advocacy) were constitutionally permissible, the Court 

has previously recognized that “‘[e]ach medium of 

expression . . . may present its own problems.’” Reno 

v. ACLU, 521 U.S. 844, 868 (1997) (quoting Se. 

Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 (1975)) 

(alterations in original). In particular, the Court has 

noted that “the broadcast media have established a 

uniquely pervasive presence in the lives of all 
17

In short, the government has never 

demonstrated, or attempted to demonstrate, that 

books corrode or subvert the electoral process.

Thus, neither Austin nor McConnell supports, or 

even suggests, that Congress may impose 

Americans,” and that, “[b]ecause the broadcast 

audience is constantly tuning in and out,” that 

audience may be subject to “unexpected program 

content.” FCC v. Pacifica Found., 438 U.S. 726, 748 

(1978). By contrast, a medium—such as a “dial-it” 

telephone message service allowing users to call in 

and listen to prerecorded messages—that “requires 

the listener to take affirmative steps to receive the 

communication” does not present this “‘captive 

audience’ problem.” Sable Comm’n of Cal., Inc. v. 

FCC, 492 U.S. 115, 128 (1989) (distinguishing 

Pacifica—noting that it relied, in part, on “the 

‘unique’ attributes of broadcasting”—and holding that 

a statute imposing a blanket ban on obscene and 

indecent interstate commercial telephone message 

was unconstitutional as applied to indecent 

messages); see also Reno v. ACLU, 521 U.S. at 869 

(distinguishing Pacifica, in considering a restriction 

on Internet communications, because, in part, “the 

Internet is not as ‘invasive’ as radio or television”). 

Just as “callers [of dial-it services] will generally not 

be unwilling listeners,” Sable, 492 U.S. at 128, 

individuals who choose to acquire and read a 

particular book will not be “unwilling” recipients of 

that book’s message. Because the medium of books 

does not present a “captive audience” problem, it does 

not create the danger that the electoral process will be 

subverted by the torrential, repeated, unwelcome 

bombardment of readers with electoral advocacy 

messages.
18

prohibitions and regulations on books that include 

electoral advocacy. The government’s statement, at 

Oral Argument, that Congress may constitutionally 

regulate all such books is unsupported, because 

such broad regulation would not be justified by a 

compelling government interest and nothing in 

Austin or McConnell requires that untoward result. 
19

CONCLUSION

For the foregoing reasons, amici respectfully 

submit that BCRA Section 203 does not extend to 

books downloaded via an electronic reader device, 

and urge the Court to reject any interpretation of 

Austin that would permit the regulation of books. 

Amici further submit that it is not necessary for the 

Court to overrule either Austin or McConnell in 

order to guarantee the constitutional protection of 

electoral speech in books, because neither decision 

permits Congress to impose prohibitions and 

regulations on books that include electoral 

advocacy.

Respectfully submitted,

MICHAEL J. CHEPIGA

Counsel of Record

JAMES G. GAMBLE

JANET WHITTAKER

AGNÈS DUNOGUÉ

MICHELLE L. HERTZ

LUCIAN C. MARTINEZ, JR.

HAYLEY M. URKEVICH

SIMPSON THACHER & BARTLETT LLP

425 Lexington Avenue

New York, New York 10017

(212) 455-2000

Counsel for Amici Curiae

July 30, 2009