The following is a fact-check of the May 16, 2010 episode of Meet the Press:

SEN. MITCH McCONNELL (R-KY)  | Elena Kagan’s solicitor office argued it would be OK to ban books, then she argued herself that it would be OK to ban pamphletsMOSTLY TRUE (but highly misleading)

SEN. McCONNELL: Solicitor Kagan’s office in the initial hearing argued that it’d be OK to ban books. And then when there was a rehearing Solicitor Kagan herself, in her first Supreme Court argument, suggested that it might be OK to ban pamphlets.

After reading through the argument transcripts and analysis by our crowd-sourcer Andy and by, we have come to conclusion that Senator McConnell’s statement is MOSTLY TRUE but highly misleading. Deputy Solicitor General Malcolm L. Stewart originally argued it would be OK to prohibit the publication of a book that was paid for with corporate funds and advocated for a political candidate. Does this fit the literal meaning of “banning books”? Yes. However, Stewart also had this exchange with Justice Alito:

(Supreme Court Argument Transcript [08-205] pg.27)

JUSTICE ALITO: That’s pretty incredible. You think that if — if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?

MR. STEWART: I’m not saying it could be banned. I’m saying that Congress could prohibit the use of corporate treasury funds and could require a corporation to publish it using its PAC.

So in this case he is saying that the issue is not about banning books as much as it is about prohibiting the use of corporate treasury funds for books which express advocacy, that those books must instead be paid for using a PAC. This is hardly the typical meaning of the term “banning books.”

Later on Kagan reargued their position, and focused not on the books but the pamphlets.

Supreme Court Argument Transcript [ 08-205 Reargued ] pg.48:

GENERAL KAGAN: …when corporations use other people’s money to electioneer, that is a harm not just to the shareholders themselves but a sort of a broader harm to the public that comes from distortion of the electioneering that is done by corporations.

Supreme Court Argument Transcript [ 08-205 Reargued ] pg.66:

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 —

and then later:

Supreme Court Argument Transcript [ 08-205 Reargued ] pg.67:

GENERAL KAGAN: [W]hat 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 Kagan did argue that pamphlets could be prohibited but it was under the same very specific context outlined by Mr. Stewart, and both also argued moments later that in fact the materials could not be banned. We are not legal experts regarding the nuance of these kinds of arguments, but it seems like a stretch that to argue in any broad sense that either Stewart or Kagan were “OK with the banning of books”.  Regardless however, they did make arguments consistent with Sen. McConnell’s statement, so we have concluded it was MOSTLY TRUE (but highly misleading).

Disagree with our assessment? This was a tricky one, so let’s hear your analysis in the comments…

Special thanks to crowd-sourcer Andy for assisting with this fact-check

This fact check took a combined 4.5 hours.