WASHINGTON — The Supreme Court agreed on Nov. 14 to consider yet another challenge to the 2002 McCain-Feingold campaign-finance law — this time in the context of an anti-Hillary Clinton film and advertisements for it.
The technical questions posed by Citizens United v. Federal Election Commission involve whether the film "Hillary: The Movie" constitutes a corporate “electioneering communication” under the law, triggering either an outright ban on showing it, or certain disclosure requirements if it is shown.
Citizens United, described in its brief as a “nonprofit, ideological corporation,” produced the movie, which was sharply critical of then-presidential candidate Hillary Clinton. One of the ads at issue quotes conservative commentator Ann Coulter saying, “She looks good in a pants suit”; the ad then adds, “Now, a movie about everything else.”
But the case may also veer close to one of the concerns that have always been in the background in debates over campaign finance: whether the complex set of regulations of campaign speech might spill over into restricting traditionally protected forms of expression, like movies, books, and even newspaper editorials, when they seek to influence elections. “Freedom of the press could be next on the chopping block,” Justice Clarence Thomas famously warned in his dissent in the 2003 case McConnell v. FEC, which upheld most of McCain-Feingold.
James Bopp Jr., the lawyer for Citizens United who has mounted several successful challenges to McCain-Feingold already, raised that specter in a statement after the Court announced its action Nov. 14.
“The notion that a feature-length movie can be banned is a return to the days of government censorship and book-burnings,” Bopp said. “This movie has been shown in theaters and is sold on DVD by major national retailers, and it is accompanied by a published compendium book for which royalties were paid to Citizens United.”
In his brief to the Court, Bopp also states, “A full-length documentary enjoys the same, full First Amendment protection as a book has historically enjoyed … . It is not subject to regulation as an ad.”
The conservative American Civil Rights Union also made the point in a brief filed in support of Citizens United. “The movie is the cinematic equivalent of an opinion commentary in a newspaper or magazine, or a book presenting political opinions,” wrote its counsel, Peter Ferrera. “As such, it is core political speech entitled to the full protection of the First Amendment. It cannot be prohibited during any election period, or at any other time. Nor can its promotion be excessively burdened by regulatory requirements.”
Solicitor General Gregory Garre, in his brief filed on behalf of the FEC, disputes that claim, arguing that the film and the ads fit the definitions of “express advocacy” subject to regulation. That is because they repeatedly refer to Clinton and her candidacy, references that are not offset by any significant scrutiny of legislative issues. Those factors were important in the Supreme Court’s 2007 decision in FEC v. Wisconsin Right to Life, which protected advertising from regulation if it could be reasonably interpreted as something other than an appeal to vote for or against a specific candidate.
The fact that the Citizens United message was contained in a full-length documentary rather than a brief advertisement makes no difference, says Garre. “There is no basis in the statute, in this Court’s decisions, or in the First Amendment for treating those communications differently when they are broadcast in the form of a two-hour film or when they otherwise vary in length or form from standard television advertisements.”
Citizens United released the film in January 2008 but, foreseeing problems under the campaign law, went to court seeking an injunction that would declare the film and ads as protected political speech. It argued that disclosure requirements — making public all the donors behind the film — would result in harassment and retaliation. The district court denied the injunction, ruling that the movie was a prohibited electioneering communication because it could not be viewed in any way other than informing voters that “the United States would be a dangerous place in a President Hillary Clinton world, and that viewers should vote against her.”
Under provisions of the McCain-Feingold law, Citizens United appealed that ruling directly to the Supreme Court. The Court turned the case down “for want of jurisdiction” on March 24, apparently because it was only at the injunction stage. The parties returned to the district court for a final judgment, which Citizens United then appealed back to the Supreme Court.
The case will be argued early next year.