Today, the Supreme Court will be taking up Hillary: The Movie — and its ultimate reviews could hold great significance for campaign financing. We have been following the case involving “Hillary: The Movie” since it first came out during the last presidential campaign. The legal dispute over the film was always more interesting than the film itself — whether this is a film or a 90-minute campaign ad. Now, the Supreme Court is set to review the film. Citizens United v. FEC (08-205) raises a fascinating question of what constitutes political advocacy and what constitutes a documentary. The Court will hopefully not produce another “I know politics when I see it” standard. I discussed the case on this segement of NPR’s Here and Now.
The lower court decisions radically curtailed the distribution of the film by restricting the conservative group in broadcasting and promoting the movie during the presidential primaries. In July, a three-judge panel granted the FEC’s motion for summary judgment.
The desire of the group to put the movie in TV-on-demand access on cable TV was shelved due to the FEC’s decision.
Citizen United is challenging the federal “electioneering communications” disclosure requirements in the Bipartisan Campaign Reform Act — a prohibition on corporations and nonprofits from airing broadcast ads, which refer to a federal candidate 30 days before a primary election. Citizens United is using the Court’s decision in Wisconsin Right to Life v. FEC, which exempted issue advocacy from the electioneering communications prohibition.
Watching the trailer below, it is hard to distinguish this movie from a campaign ad. However, the rulings below should trouble free speech advocates. The court found that the 90-minute campaign ad “susceptible of no other interpretation than to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world, and that viewers should vote against her.” That may be so, but such a conclusion could also be reached in a perfectly legitimate documentary or parody. Consider Michael Moore’s anti-Bush documentary “Fahrenheit 9/11.
The actual restrictions and their impact on the film are a bit more technical. The McCain-Feingold legislation requires that “any broadcast, cable or satellite communications” during the period before an election clearly state the name of the group paying for ad is one such provision.
There is no question that Citizens United, a nonprofit corporation, has a bit of an obsession and hatred for both Clintons. It is the creation of Citizens United President David N. Bossie, a long Clinton critic.
The case raises both very broad and very technical questions. The threshold question, however, is the role of the government in making this judgment call between films from Michael Moore’s Fahrenheit 911 to Hillary the Movie. Often literary works have a political purpose or message. Shakespeare’s work, particularly Richard III, has been described as a brilliant Tudor propaganda — Richard III was the last Yorkist king and vilifying the House of York was of great benefit to Shakespeare’s Tudor benefactors. Richard III was defeated by the first Tudor, Henry VII and the ancestor of Elizabeth I. In my Supreme Court seminar on the current case, my students and I discussed whether the FCC would require Shakespeare to add “Brought to you with the generous contributions of the Tudor Family.”
The vote in the class on the case was interesting. We split down the middle: Seven favored the ruling of the FCC while Seven would support Citizens United. However, the prediction of the likely outcome was heavily in favor of the Supreme Court affirming the lower three-judge panel against Citizens United.
For a trailer of the movie, click here.
For the full story, click here.
Forgive my simplistic approach, but aren’t all works of art –good or bad–political statements?
“My art will reflect not necessarily conscious politics but the unanalysed politics of my life.”
–Carl Andre
The more interesting question is the constitutionality of the underlying legislation. But leaving that question aside, the argument that this film is a “documentary” rather than a campaign ad is cut from the same cloth as the argument that the Confederate flag is a memorial to southern heritage rather than a symbol of racism.
Mike:
“….the argument that this film is a “documentary” rather than a campaign ad is cut from the same cloth as the argument that the Confederate flag is a memorial to southern heritage rather than a symbol of racism.”
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I don’t think this film has the same historical baggage as a battle flag from an army that tried to assault the Capitol and was part of an internal insurrection. Like the battle flag though, it certainly would be political speech wouldn’t you agree?
Any movie that has Newt Gingrich in it can’t be political speech. It has to be called political lies. Notwithstanding the right wing talking heads that are all over that production, Free Speech should mean just what it says. I am pretty much a Douglas Free Speech absolutist so I don’t care if they are allowed to run the film as a “movie” or as a commercial. Lies will be uncovered no matter when they are dissemninated.
Mespo,
That depends on who you’re talking to and what your definition of art is. There are schools that say that art has to make a statement to be art, and there are schools that say art needs to be aesthetically pleasing…
Gyges:
Even aesthetically pleasing art expresses some point of view with an eye towards impressing the viewer, reader, listener, or other recipient of the art. To that extent, art is always political. Art deals with motivating humans possessing some degree of innate power, into some sort of relationship (if only with the artist herself), or to action. To me, that is the essence of the term “political.”
“All art is political in the sense that it serves someone’s politics.”
AUGUST WILSON, The Paris Review, Winter 1999
Mespo:
how is all art political? Some art is political, but are you talking about the patrons or the artist or the end result?
I guess I dont know much about art but I dont see anything political in Monet or Manet or Thomas Cole. I suppose, if you look at it from a religious perspective and that religion and politics are intertwined then yes most art is probably political. Or at least the patrons are, the artists probably just want to create.
The underlying question it seems to me is how do we ensure that entrenched wealth does not overwhelm the electoral process? This is of course exacerbated by the need for unfettered political speech. I personally can’t say Michael Moore’s movies are permissible and this “movie” isn’t without being hypocritical. However, with a MSM controlled by the powerful, the only means of honest public discourse is the Internet and the corporatists are eying control of that. We are fast rushing towards a propaganda controlled society and that is the salient issue. One answer is to maintain Internet freedom and to level the media playing field. If this isn’t done we will face a world ruled by a few cartels and the governments beholden to them in a subsidiary position. We the people will be mostly peasants, with a small middle class serving their masters the Megalopolists. We need a return to anti-trust laws vigorously enforced and free TV time for candidates.
Mespo,
I think you’re redefining politics to suite your argument. Your definition of Political is broad enough to make it encompass every single human interaction. If you define Political as “motivating humans possessing some degree of innate power, into some sort of relationship… or to action,” then I agree, all art is political. However, any teenage boy being nice to a cute girl is also then making a political statement. As is any toddler throwing a fit to get a toy.
Note: My arguments all assume the narrower (and more common) definition of politics.
I put more stock in the intention of the artist than the interpretation of the viewer. I’ve heard people argue convincingly for the opposite though. Art’s such an amorphous subject that no one philosophy (mine included) will cover every instance.
Some artists view themselves as journalists, expressing a moment\feeling\etc. in the way they think best conveys it to their audience. Is their intriptation of the event colored by politics, probably. However, there is a difference between being influenced by politics and being a “political statement.”
Gyges:
“Your definition of Political is broad enough to make it encompass every single human interaction.”
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Well or course it is so, or at least to Aristotle and the other ancient inventors of the term, “political” issues dealt with the broad relationships between people in a given society. Hence Aristotle’s statement that man is a “political animal,” and can achieve good best in the company of others organized in a society. To the ancient Greeks, those interactions were entirely “political.” The common usage of the term as pertaining only to government affairs is a modern restriction. See Aristotle, “The Politics.”
Here’s the best definition of “political” I know and its from Ask.com: “The often internally conflicting interrelationships among people in a society.”
Lest you think the word is not that broad, trying getting your deserving kid on a little league All-star team from outside the ruling clique, and you will understand “politics” and “political” as never before.
Bron98:
Monet and Manet and many other Impressionists were in open rebellion against the realist school of painting. As difficult as it is for us to believe today, they were harshly attacked by their critics for straying too far from the traditionalist lines of their contemporaries. Their every work was a political statement attesting to their vision of art being in the “impression,” of the subject on the artist,and not the expectation of the viewer. Sometimes one needs some background in the work before understanding art and politics.
Mespo:
thank you for the “art” lesson.
I just watched the entire film on YouTube (in 9 segments of about 10 minutes each).
I side with ‘Citizens United’; this is a free speech issue. I hold equal contempt for Ms. Coulter and Mrs. Clinton. Furthermore, I disliked everyone (neutral regarding “Bills gals”) in the “film” except for the retired USAF Lieutenant Colonel.
Mike Appleton: I think that the ‘Stars n’ Bars’ is a beautiful flag steeped in legitimate heritage and honor; however, the ‘Stars n’ Stripes’ best represents our democracy and the unity for which we must continually strive to survive as a free Nation.
Mike Spindell: I agree regarding the free Internet and with your comments for potential hypocrisies between the various liberal or conservative “documentaries.”
Rafflaw: I side with your staunch free speech stance. You might not go as far as I would regarding the unrestricted allowance of satirical references to White House watermelon patches, and others, but that is understandable, if so.
Mespo: I think your broad definition of ‘politics’ is most correct, unfortunately so.
I got a laugh out of Mr. John Edwards, for whom I once would have voted, when he criticized Mrs. Clinton for her lying.
Of course there is a great deal of art and literature which is “political” in a broad sense. The question here as I understand it is not whether the movie constitutes political speech in the broad sense, however, but whether it was published for the purpose of endorsing a candidate in an election. Again leaving aside the issue of constitutionality, the film does not advocate positions on particular political issues; its focus is the destruction of the Clinton candidacy specifically. Having said that, I should acknowledge that, like rafflaw, I long ago adopted the views of Justice Douglas on the First Amendment. But I also share the concern of Mike S. that freedom of speech is endangered when great wealth can artificially restrict the flow of opinion through the simple process of reserving all of the available speaking dates in the public square. That is one of the evils sought to be curtailed by the McCain-Feingold bill. I just don’t believe that it’s constitutional.
Bron98:
For some context here’s Manet’s take on a critic of his work “Olympia,” and the words from the reviewer:
“Abuses rain upon me like hail,” Manet wrote. His work was reviled as a “terrible canvas”; his model as “vile” and “wretched.” “The crowd, as at the morgue, presses together in front of the gamy Olympia.” The work displayed “an almost childish ignorance of the first elements of drawing” and Manet “a bent for unbelievable vulgarity.”
And here’s the “vile” work:
http://biblioklept.files.wordpress.com/2008/05/olympia.jpg
Lord, let me be so ignorant of the first elements of drawing!
Mike:
This legislation is like catching smoke with your fingers. No matter how hard you try it, slips through because all speech in this context is protected speech. The First Amendment does not create a quota or set aside on free speech nor place any restriction of the wealthy. It restricts only the actions of the government as you well know. That the wealthy use their economic power over the less wealthy is nothing new,and is undeniably built into our — and every other — political system.
“This legislation is like catching smoke with your fingers.” Well said and I agree in toto.
The 2 great equalizers to highly funded political speech campaigns are an informed electorate and the Internet.
Mike A.: Are you saying the SCOTUS will/should continue to chip away at McCain-Feingold as they did with the ‘Millionaire’s Amendment’ because there are more violations of First Amendment political speech and/or Fifth Amendment rights within the law rendering it unconstitutional?
Ack, unclosed italics tag!
Mespo:
I can see what the critics were saying, isnt this the time in art where it was transitioning from the realism school? So the work while quite good is not quite up to snuff when compared to past works.
But as you say if only I could paint that well.
FFLEO, I believe that the court will chip away at the statute until it’s meaningless.
Mike A., Mespo
I agree that McCain-Feingold is constitutionally flawed and I agree with Douglas, a hero of my youth, that as much as possible speech should be unfettered. I can remember a time when Ulysses, Joyce’s masterpiece was banned in the US for obscenity. The comment on the wealthy using their power to control, is as Mespo stated an old story. Nevertheless, we are fast reaching a point(tipping in the latest jargon)where wealth will fully overwhelm any voice of the citizenry requesting fairness of treatment.
While I of course agree with FFLEO on the Internet perhaps being the equalizer, until that is taken away, but as for the informed citizenry that has been chipped away in the last 3 decades by removing Civics and Social Studies from public education. How can ordinary citizens know their constitutional rights are being removed, if they don’t know what those rights are? Being 64 I was grounded in the Constitution and American History in elementary school. My guess is that so was FFLEO and any codgers here who approach our ages.(FFLEO you seem about my age in your comments, if you aren’t my apologies since you certainly seem to have the wisdom of maturity)
The rest of you are either very smart people or lawyers so that you too are aware what “Constitutional” can mean. The average citizen, though far from stupid, was deliberately under-educated through funding by followers of the philosophy of Edmund Burke. This elite does not believe in democracy, but in a republic run by the elite. W.F. Buckley was quite specific about it in his early days, as was his partner at the National Review William Rusher. Their beliefs have taken root and the greatest threat to democratic ideals is the systematic “dumbing down” of our citizens.
Perhaps the line of battle, beyond maintaining Internet freedom, is a grass roots one to put Civics and Social Studies education back into our schools, to develop an informed citizenry. While I agree that we can’t limit the free speech prerogatives of the wealthy, without incurring other dangers, the only other solution that comes to mind is free TV for candidates but that is hard to implement.
Mespo,
I’ve been thinking about why your definition doesn’t sit well with me. Your definition is accurate; I have no complaints on it’s validity (even if I did, I have no doubt I’d leave with my mind changed).
My problem is that I can’t shake the thought that there is a point where the definition of a word becomes so wide as to render it useless. Here’s my theory: The concept becomes to big for most people to think\speak about comfortably. People start using it to cover only a certain part of politics (or God, Art, Morality etc.). Where the difficulty arises is that nobody ever picks the same meaning, so whenever it gets discussed people just end up talking past each other.
I don’t know that that is a necessary end result of a word’s meaning being broadened, but it’s a danger. So when a word has more than one level of meaning (like Politics), my preference is usually one of the narrower levels. I view all levels as valid, but my usage tends more towards the specific rather than the over-arching.
Just my thoughts on the matter.