A three-judge panel on the D.C. Court of Appeals appear ready to declare a film on Hillary Clinton to be cleverly disguised campaign advertising, including Judge Royce Lamberth who started to call the arguments of the conservative film maker “ridiculous” in open court. The case, however, is an interesting one due to the lack of a clear test on how to determine if a film is an advertisement or a true film in a campaign year. The film, “Hillary: The Movie,” may have to comply with campaign advertising rules that would restrict its exposure in some media and even require a warning. Probably the worst penalty would be the need for the filmmakers to reveal the sources of their financial support — opening up the shadowy finances of such partisan efforts by both democratic and republicans groups.

Citizens United, a conservative group, is litigating the issue and contesting the need of to such disclaimers on the film. The film is a fairly raw attack on Clinton. In one ad, a narrator says, “First, a kind word about Hillary Clinton.” Conservative commentator Ann Coulter then comes on the screen and says, “Looks good in a pant suit,” to which the narrator adds, “Now, a movie about everything else.” Despite its hard-hitting tone, the lawyers insist that it is still “issue-oriented” speech.

What’s the issue?” asked Judge A. Raymond Randolph, a federal appeals judge sitting on a mixed panel to review the case. “That Hillary Clinton is a European Socialist,” Bopp replied. “That is an issue.””Which has nothing to do with her campaign?” U.S District Judge Royce C. Lamberth interjected.”Not specifically, no,” Bopp replied.” Once you say, ‘Hillary Clinton is a European Socialist,’ aren’t you saying vote against her?” Bopp disagreed because the movie did not use the word “vote.””Oh, that’s ridic…,” Lamberth said, trailing off and ending the line of questioning.

The judges have a point but there are some real concerns raised by defining a film like this as political advertising. The movie is set for screenings in theory and for sale on DVD. Thus, it is not a classic form of advertising. Moreover, Hillary has long been a cash machine and dark icon for conservatives. As a senator, there was ample reason to do a movie and waiting for the election could be viewed as merely good marketing. After all, pro-Clinton and anti-Bush films have been released shortly before campaigns.

Moreover, the film is in line with other works that are hard-hitting political films but not treated as political advertising. Citizens United is credited with Celsius 41.11: The Temperature at Which the Brain Begins to Die, which became a popular counterfilm to Moore’s Fahrenheit 9/11. It also produced Border War: The Battle Over Illegal Immigration; and ACLU: At War With America.

Under the Bipartisan Campaign Reform Act of 2002, a three-judge panel of trial and appellate judges to hear disputes in these cases. The panel has an interesting mix. Judge Randolph is quite conservative while Lamberth is conservative but a maverick. U.S. District Judge Richard W. Roberts is a Clinton nominee and viewed as a moderate to liberal judge.

The FEC actions raises serious constitutional questions, most significantly the exposure of donors. Previously, the FEC forced Michael Moore to strip out any mentions of President Bush in 2004 in his advertising of his movie Fahrenheit 9/11. Like Citizens United, Moore timed the movie for the election. However, this was the only penalty and the movie itself was not treated as political advertising.

It is surprising to see the absence of a coherent test, a point that Judge Roberts appeared to be struggling with in oral argument. This could be a viable constitutional challenge for the Supreme Court. While the judges appeared to dismiss the claims of the filmmakers, there is obvious merit to some of the concerns that they raise. Obviously, the meaning and form of political speech has changed in the era of the Internet and good media. However, if a test sweeps too broadly, it could regulate creative works based on their content and chill funding for such work.

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