Political ad or free speech? Anti-Hillary film gets court screening

McClatchy NewspapersMarch 24, 2009 

WASHINGTON — Supreme Court justices on Tuesday gave decidedly mixed reviews to efforts to regulate "Hillary: The Movie," as they considered a case that will shape future election campaigns.

Everyone agrees the 90-minute film is vehemently anti-Hillary Clinton. The justices disagree on whether it's tantamount to a political ad that can be regulated, or a documentary that enjoys full free-speech protection.

"I saw it," Justice Stephen Breyer said. "It's not a musical comedy."

The hour-long oral argument in the case, Citizens United v. Federal Election Commission, left certain only one thing: The Supreme Court will produce another sharply fractured decision guiding future campaign finance rules.

Justices Ruth Bader Ginsburg, David Souter and Stephen Breyer suggested that they consider the film the kind of campaign advocacy that's subject to reasonable regulation. By contrast, Chief Justice John G. Roberts and justices Antonin Scalia and Samuel Alito cast the campaign-finance regulations as an infringement on the First Amendment.

Alito in particular drilled home the point that campaign books might be banned next if the Obama administration prevails in the argument that campaign-finance restrictions extend to a lengthy documentary film.

"That's pretty incredible," Alito said, to say that "if a campaign biography was published, that could be banned."

A conservative group called Citizens United produced "Hillary: The Movie" and released it in January 2008. Featuring conservative commentators such as Robert Novak and Ann Coulter, the movie repeatedly describes Clinton with words like "cunning," "ruthless," "deceitful" and "Machiavellian."

In one characteristic movie moment, Dick Morris, a one-time political operative for Bill and Hillary Clinton, says, "Hillary is the closest thing we have in America to a European socialist."

The movie also hints at a specific electoral agenda, as when conservative commentator Tony Blankley warns that "Clinton's political history (is) worth recalling before you go in to potentially vote for . . . Hillary Clinton." The movie doesn't, however, explicitly urge viewers to vote one way or another.

At the time of the film's release, Clinton was a New York senator in the midst of the Democratic presidential primary, which she eventually lost to Barack Obama. Now secretary of state, she was at the time considered the front-runner for the Democratic presidential nomination.

"This documentary is the very definition of the robust, uninhibited debate . . . that the First Amendment is there to guarantee," said Theodore Olson, a former Bush administration solicitor general who represents Citizens United.

Corporations and labor unions long have been banned from directly funding political campaigns, although they can establish political action committees. A 2002 campaign-finance law extended the restrictions to cover ads that seek to sway voters without explicitly calling for a particular vote.

The 2002 law blocks corporations and labor unions from funding such "electioneering communications" within 30 days of a primary election or 60 days of a general election. Individual contributors also must be disclosed.

Citizens United showed the movie in six theaters nationwide. The organization also wanted to pay $1.2 million so the movie could be distributed through a video-on-demand service. The Federal Election Commission said the film was the "functional equivalent" of the kind of campaign advocacy for which contributors had to be identified and corporate and labor funds were banned.

"There is no constitutional distinction between the 90-minute film and the 60-second commercial," Deputy Solicitor General Malcolm L. Stewart told the court.

The court is expected to decide the case by the end of June. Although some conservative activists hope justices will use the case to strike down broad campaign restrictions, a more narrow opinion may be more likely. For instance, one tied to the fact that Citizens United wanted to distribute the film through video-on-demand.

"You have a person who wants to speak and a person who wants to hear," Scalia noted. "It seems to me that that's a stronger First Amendment interest."

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Trailers and ads for "Hillary: The Movie"

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McClatchy Newspapers 2009

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