WASHINGTON — The Supreme Court today questioned whether government regulation of a movie critical of former presidential candidate Hillary Rodham Clinton might also be used to ban books critical of political hopefuls during election season.
One justice warned that the future of the nation's campaign-finance laws could ride on their decision on whether the anti-Clinton movie was journalism or a political attack ad.
Government lawyers argued that conservative group Citizens United's 90-minute documentary "Hillary: The Movie" is a political ad just like traditional one-minute or 30-second spots and therefore regulated by the McCain-Feingold law, the popular name for 2002 revisions to the nation's campaign-finance laws.
The test "does not depend on the length or the way it's communicated," Deputy Solicitor General Malcolm Stewart said.
Arguing that a movie and a campaign ad are the same could have adverse consequences for the McCain-Feingold law, Justice Anthony Kennedy said. "If we think that the application of this to a 90-minute film is unconstitutional, then the whole statute should fall," he said.
Citizens United wanted to pay for its documentary "Hillary: The Movie" to be shown on home video-on-demand, and for ads promoting the movie to be shown in key states while the New York senator was competing with then Sen. Barack Obama for the Democratic presidential nomination.
Federal judges, however, said the movie should be regulated by the McCain-Feingold law.
But if the federal government can treat a movie like a political advertisement, then why not books, the justices asked.
It can, answered Stewart, "if the book contained the functional equivalent of express advocacy," the test used in regulating political material during election seasons.
That answer seemed to concern the justices. What about electronic books, like those used on Amazon's Kindle reader, justices asked. Yes, Stewart said.
What if Wal-Mart wanted to run ads touting an action figure of a political candidate, Chief Justice John Roberts asked, could that be regulated? "If it aired at the right time, it would," Stewart said.
Stewart pointed out that by ban, he meant prohibit "use of corporate treasury funds." Campaign regulations require the backers of political ads to be identified and prohibit corporations and unions from paying for ads that run close to elections and single out candidates.
But former Solicitor General Theodore Olson, arguing for Citizens United, said violation of campaign-finance laws are a felony that could bring prison time. "What they mean by prohibit is that they will put you in jail," Olson said.
Olson argued that campaign-finance laws should not apply to the movie at all, calling it a "long discussion" that "informs and educates" interested people on Clinton's qualifications and record. That argument did not seem to sway several of the Court's liberal justices.
Only one justice, Stephen Breyer, acknowledged actually watching the movie and his reaction: It's "not a musical comedy," he said.
Several justices quoted from the script, which is filled with criticism of the former first lady. It includes Dick Morris, a former adviser to President Bill Clinton who is now a Clinton critic, saying Hillary Clinton is "the closest thing we have in America to a European socialist."
"If that isn't an appeal to voters, I don't know what is," Justice Ruth Bader Ginsburg said.
But Citizens United's attempts to pay for the movie to be shown on video-on-demand — where people request "Hillary: The Movie" be shown on the televisions in their home — could bring heightened First Amendment scrutiny, Justice Antonin Scalia said.
Not only would the government be preventing the movie's producers from getting their movie out, they would be blocking someone who specifically wants to see that movie from getting it, Scalia said.
"Isn't that a heightened First Amendment" concern, Scalia asked.
Ginsburg, however, pointed out that Citizens United never made that argument before the lower court, making it difficult for the high court to consider it now.
The movie was advertised on the Internet, sold on DVD and shown in a few theaters. Campaign regulations do not apply to DVDs, theaters or the Internet.
The case is Citizens United v. Federal Election Commission, 08-205.