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.
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 argument is March 24, 2009.
For a trailer of the movie, click here.
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