If the Supreme Court “know[s] pornography when [it] sees it.” how about politics? That may be the question with a case seeking review of an appellate decision to treat a documentary entitled “Hillary: The Movie” as akin to a campaign commercial. The movie, the work of David N. Bossie, is an attack on Clinton as well as campaign finance laws. It presents a compelling first amendment challenge to the law and its requirement that the producers disclose their list of donors.

A three-judge panel on the D.C. Court of Appeals was highly skeptical during an oral argument on the film, suggesting that it was a cleverly disguised campaign advertising, including Judge Royce Lamberth who started to call the arguments of the conservative film maker “ridiculous” in open court.

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 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.

The panel ultimately did not apply the entirety of the restrictions under the law. The panel did not uphold the application of the black-out period under the law. The law bans the use corporate or union money for “any broadcast, cable or satellite communication” if it “refers to a clearly identified candidate for federal office” within 30 days of a primary election or a convention or within 60 days of a general election. The McCain-Feingold law would ban advertising of the movie without mentioning Hillary, which is in its title: Forcing ads to refer to the movie “of she-who-must-not-be-named.”

The group wanted to run 30-second ads on Fox News and other television outlets.
The panel ruled that the movie itself was like a campaign ad because it tells “the electorate that Sen. Clinton is unfit for office . . . and that viewers should vote against her.” However, because “they proposed a commercial transaction — buy the DVD of The Movie,” the panel ruled that the ads could be run. Yet, the court still uphold the application of another provision forcing the disclosure of the donors of Citizens United.

It remains unclear whether that partial victory will deter the Supreme Court from accepting the case since the group can air the ads. However, it is a case that raises legitimate issues of free speech and would warrant review. It will also be interesting how the politics affect both the Court and the candidates. With McCain struggling to rally conservatives (who generally oppose his namesake law), review would add to his difficulties with the conservative base.

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