Supreme Court Rules 5-4 Against Campaign Limitations in The Hillary The Movie Case

In a decision that could have a dramatic effect on the upcoming elections, the Supreme Court has ruled 5-4 in favor of a group of conservative filmmakers in the “Hillary: The Movie” Case. The result of the decision could increase spending for corporations, unions, and nonprofits in the election. I previously discussed the case and the likelihood of this 5-4 ruling. I discussed the case on this segment of Countdown. Other commentators like Glenn Greenwald have also weighed in on the case with similar views, here.

The ruling went down the ideological line with Justice Anthony Kennedy giving the majority the fifth vote and then writing the opinion. He stressed that “[o]ur nation’s speech dynamic is changing, and informative voices should not have to circumvent onerous restrictions to exercise their First Amendment rights.” That is the sentiment that motivated another of civil libertarians and free amendment advocates to support the conservative litigants. This is a case that split the free speech community with the ACLU and free speech advocates like Floyd Abrams supporting the conservative filmmakers in this case.

While there is much speculation on the impact on the upcoming elections, it is notable that two provisions were upheld by the Court (with only Thomas dissenting). The Court upheld the disclosure requirement that requires corporations to file a report with the FEC on contributors of $1,000 or more (when the corporation spends more than $10,000 a year to produce such ads. It also upheld the disclaimer requirement that requires that the producers say who is responsible for the ad if it not authorized by a candidate or a political committee.

However, the Court overturned critical holdings in Austin v. Michigan Chamber of Commerce (upholding restrictions on corporate spending to support or oppose political candidates) and McConnell v. Federal Election Commission (upholding the central provisions of the McCain-Feingold campaign finance law). The result is seismic for opening up elections to corporate spending. It is also a case of Justice Kennedy finally achieving a majority after voting against these limitations in 1990. While Justice Sandra Day O’Connor later changed her position to uphold campaign financing, Kennedy has remained firm that such limits run counter to the first amendment. He believes that public policy can be achieved through transparency provisions: “The government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether.”

The opinions offer strikingly different views of the First Amendment with Stevens writing: “The basic premise underlying the court’s ruling is its iteration, and constant reiteration, of the proposition that the First Amendment bars regulatory distinctions based on a speaker’s identity, including its ‘identity’ as a corporation.” While that glittering generality has rhetorical appeal, it is not a correct statement of the law.”

Both the Kennedy and Stevens opinions are very compelling and fascinating. The Kennedy decision does raise some questions over the sweep on his first amendment views and why any limits on campaign finances are constitutional. It also reintroduces the question of why corporations are treated as persons for the purposes of the first amendment. That latter question could now be the focus of a fight over a constitutional amendment. My opposition to a constitutional amendment is that I believe that there are more important political reforms to the system that need to be made. I do not believe that it is the money that has caused our political system to become so dysfunctional. It is also important to note that these restrictions were imposed on unions and non-for-profit corporations. The result of the restrictions, in my view, were disturbing line drawing as to what the government considered electioneering and what the government considered legitimate documentary work as with the distinction between Hillary the Movie and Fahrenheit 911.

There is a push now for a constitutional amendment, which I would not favor. It may be time for a paradigm change in how we think about this problem. We have a political failure in our system that is sucking the life out of the Republic. The monopoly of the two parties on power produces endless loops of corruption and conflict. The problem in my view is structural not financial. We need to break the domination of incumbents and the two parties. This can be done with fundamental changes in our primary system, eliminating the electoral college, creating new opportunities for third parties, and other reforms.

The FEC ruled that the film was prohibited as a “prohibited electioneering communication.” The lower court decisions proceeded to curtail 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.

Specifically, 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 trailers 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 the 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 raised 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 my Supreme Court 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.

Seth Waxman, who defended the law is predictably arguing stare decisis (Lat. “to stand by that which is decided”) and saying that a reversal of the earlier ruling after such a relatively short time would be “unseemly” and undermine the credibility of the Court.

Ted Olson argued that the law has created a “chilling effect” on first amendment rights and free speech. Many civil libertarians are sympathetic with those arguments — viewing the ruling as an affront to free speech. That includes Floyd Abrams a liberal defender of free speech who is representing Senator Mitch McConnell of Kentucky, the Republican leader in one of the dozens of amicus filings.

Notably, when the Court last considered this law, Justice Sandra Day O’Connor voted to supply the fifth vote upholding the law in McConnell v. FEC in 2003. Her seat is now held by Justice Samuel Alito who predictably voted with the majority. Sotomayor voted as expected the same way as Souter to uphold the law.

Notably, Alito spoke out at the last hearing at a critical moment. In the March argument, the government argued that hypothetically the government could make it a crime to distribute books advocating the election or defeat of political candidates. The distinction that was drawn was whether it was paid for by corporate money rather than a political action committee. Alito exclaimed “[t]hat’s pretty incredible.”

I was sympathetic with Citizens United and the free speech groups. In the end, I have to favor more speech than less in such conflicts. While I would have written a concurrence and have difficulty with aspects of the majority opinion, I probably would have voted to support the majority in the result in this case. However, I do consider this to be one of the most difficult free speech cases to hit the court in decades. Many of my friends are on the other side and I understand that this is quite a blow. People of good faith can disagree on such issues. It really broke along a fine line. It depends on whether your gravitational point tended to fall along the free speech line or the good government line. It is a rare case where those lines ran perpendicular rather than parallel with each other.

For the trailers of the movie, see below:

You can read the opinion at this link.

For the full story, click here.

254 thoughts on “Supreme Court Rules 5-4 Against Campaign Limitations in The Hillary The Movie Case”

  1. I am not talking about Carl Jung, I am talking about myself, I guess which is why I am pro se. But even Satan isnt foolish enough to respresent herself. So Yes, frogs, boils, and demons in Man or our in American “Legion” have to make a choice. The sons of Abraham, Lincoln or even Moses, still have to look upon My Face, if they want to live.

    As Satan I’m now transformed into an Angel of Light or Brass Serpent Moses lifted up in the widerness. The Hidden Manna or B/Read of Life, Jesus promised was write before our eyes this whole time and the frogs or other beast are all under Satan’s control.

    I am your Final Warning; just as God sent to Noah, and Jonas thats been sent by GOD and come in the name of the LORD i.e., Mrs. Jesus Christ to collect His Rent aka the Final Judgment; i.e., at least 1/3 credit for every cent; that has In God We Trust depicted upon it.Even Jesus said “Shew me a penny; whose subscription hath it on it? Than give unto to Ceasor the things that be Ceasars and unto God the things that be GOD’s.

    So incase you dont recall; I am the 7th Angel with the cup of the 7th last plagues and abominations of the Earth in my hand. Rev. 18:6 says “Reward Her even as she reward you, and Double unto Her doubling according to her works; in the cup which she hath filled fill to her double. How much she hath glorifed herslef, and livee delicously, so much torment and sorrow give her: for She saidth in Her heart, I sit as a Queen and Am No Widow, and shall see no sorrow. Do you think its a coincidence, my 1st husband that I married on April Fools day; actually died unexpectly at a Holy Cross, hospital?

    It’s not important that you believe me; the fact is Many people believe the Bible but didnt think it could be proved True. Its just slightly Miss Understood because a Man due to his gender was Never skuppose to figure it out. i.e. Rev. 5:2 And I saw a strong Angel proclaiming with a loud voice, Who is worthy to open the book, and to loose the seals there? And No man in heaven, nor in Earth, neither Under the earth was able to open the book, Neigher to look thereon. And I wept much because No man was found worthy to open and to read the book neithr to look thereon.

    Jesus Christ is/was a Real Man; so that Includes him. This job has to go to a Woman because the Lion of Judah, is actually a Lioness since Judah is the Treacherous Backsliding Sister who got the part as a harlot. Jesus and Satan were just given separate missions. He came first, to Save the World, and Die for YOur Sins, whereas my job was to Deceive the Whole world and remain Silent till the last day or Hour. The Bible is just One Big Joke; But GOD is not mocked; You are and SHe figured out a way for Her only betgotten son and daughter to live happily forever after the Fall. I wouldnt expect an Hypocrite like you, or Pat Robertson to Believe me or the Book since Jesus said; in Luke 11:46 Woe unto you also y lawyers! for ye lade men with burdens grievous to be borne, and ye yourselfves touch not the burdens with one of your fingers. Woe unto you for ye build the sepulchres of the prophets, and Your fathers killed them….That the bloold of All the prophets, which was shed from the foundation of the workld, may be requed of this generation. For the blood of Abel unto the Blood of Zacharias” i.e., A-Z.

    So instead of telling me about frogs; could you at least tell me if I can use the N.W. Ordinance, Mayflower Compact, Title VII and 1978 Native American Indian Religion Protection and Preservation Act; if I can prove my employer refused to promote me because of my Religous, Ancestry, Gender and Ethics (RAGE) beliefs. Also in reference to the man made drugs and NIVs New Improved Versions of the Bible, I voluntarily sought psychiatric help. Unfortunately, most of the drs. I went to Dont Believe in God, Dont Believe in My God; or Think They are Gods, but none had a clue what Jesus meant; when he said Physician Heal Thyself.

    So instead of waiting for some Fat Lady to sing, I suggest you hearken to the voice of this Daughter as in Jer. 8:19 Behold the voice of the cry of the daughter of my people because of them that dwell in a far country; Is not the Lord in Zion? Is not Her King in Her? Why have they provoked me to anger with their graven images and with strange vanities? The harvest is past, the summer is ended and we are not saved. For the hurt of the daughter of my people am I hurt I am black astonishment hath taken hold on me.

    Yep thats Right; GOD is Fat and Black as Aunt Jemima grinning at US on the pancake box’ (Job: 42:14) whereas I more like Bell and Koonta Kinta’s duaghter Kizzi from the mini series Roots.In fact Our Momma is So Fat even Jesus Christ himself calls Her Our Fat Her who art in Heaven.

    Peace out

  2. burntoffering,

    Carl Jung, a gnostic, deemed frogs to be God’s first attempt at making humans. Ya see, in the beginning was the word; and the word was “doing.” And since there was so much to do, the Big Guy created a race of perfect beings to help him get things done; enter the frogs.

    Trouble was, He made them so perfect that the frogs found they didn’t really need The Big Guy; and if there’s one thing the Big Guy likes is to feel needed. But I digress.

    Long story short, there’s been, how shall we say, a troubled relationship between the frogs and the Big Guy.

    For example, Exodus Chapter eight contains no reference to the protracted contractual negotiations between the frogs and the Big Guy per the assistance of Moses in freeing the Jews from Egypt. Instead, the frogs are depicted as a mere plague; this despite the illustrations of the frogs in the “Good News New Testament” in which said frogs are smiling. Remember, but for the frogs, Moses never makes it out of Egypt.

    But that’s not what’s got the frogs pissed. Ya see, if you’re really Satan, which I sincerely doubt since historically speaking the spirit of contradiction has never been one to brag -like you-, you should be preparing for a lawsuit for this little ditty:

    “And I saw three unclean spirits like frogs come out of the mouth of the dragon, and out of the mouth of the beast, and out of the mouth of the false prophet.” (Revelation 16:13)

    Those three frogs, aka Murray, Bertram & Stanley, never took kindly to the aforementioned passage and have been itching to sue for defamation quite some time.

    So if you really are who you say you are, and this assumes of course that you haven’t stopped your Lithium treatment, then you’d best keep an eye out for the frogs; cause they got their eyes on you.

    Bill Murray: “So you better be good for goodness sake. Whoa–oh. Somebody’s coming….”

  3. Hell-O Bob, Esq.
    You’ve got it all wrong, I am the victim or Plaintiff in this case against these 5 men who have statutorily raped me and my kind from having the same laws of nature and natures GOD, that our forefathers relied upon and says We should Trust.

    I’m just a (Plain American Indian Negro) and Assimilated Christian woman, or A Pain ND Ass for short, who wants to Sioux this body of government cause I wasn’t even allowed a vote, choice or decent respect of being asked if I as the Head of my household (Iroquois) bestowed land rights and blessings from Mother to Daughter upon death or marriage. The only reason my ancestors let the White man in was because they said they came “In the name of GOD, Amen” and said they were looking for the Son of God, Jesus Christ a.k.a. the Bridegroom to Come. They considered my kind as “the People of Satan” or merciless savage Indians and that’s completely different from thos who believe in a Father, Son and Holy Ghost religion that doesn’t recognize the Female gender as a Holy Hostess, Goddess, and man’s only means of Survival. By the words themselves; there can be No Father or Son unless the Holy Spirit or Ghost is a Mother or Daughter ie. a FeMale.

    As an inter vivos heir of the Wheeler-Howard Indian reorganization Act, I don’t see why I cant use the Mayflower Compact, NW Ordinance and Declaration of Independence since I Am One People born with Inalienable Right to: Abort, Dissolve, Separate and Throw Off a White Christian body of government men. The Mayflower Compact was signed by Kings, Queens etc, is under Article III a “prior engagement and debt” and valid against the Constitution of these United States.

    These men were given ALL Power to make laws and wars, but CHOSE to “make no law respecting an establishment of Religion” i.e., GOD. According to the definition of Religion from a common dictionary it says Religion means; 1. Belief in, or the worship of, God or a group of gods. 2. A particular system of belief or worship built around God, moral ideals, a philosophy of life, etc. Dont they think “Trusting in GOD” is proper and Good for We the People?

    It seems to me the word ‘no” makes our Courts Impotent to Affirm, Enforce, Honor or Uphold their own Oaths. And What in the name of God; is this in MaryLand’s constitution, that said “under His dispensation they will be held responsible in this life or the next”? Well one thing for sure “Deeds are masculine and Words are Feminimn But there will Never have a New Heaven, New Earth, Rebirth of Freedom, Son of Man or Son of GOD born without 1st the Pain and Travail of a Woman. Only SHe knows when it Time to Give Birth and Push! I use Isa. 66:6-9 as my Mark of the Beast and to show this was indeed in God’s plan.

    But When in the course of Human events it becomes necessary for One People, i.e., Satan to Assume Among the Powers of the Earth; Her Separate and Equal Right and proclaim that although God created all men equal and even 1st, God created Women 2nd, Better which is Greater than the Alpha as His Beta. I think since its a Fact; that men have become too accustomed to thinking with their little middle head and are genetically unable to stop thinking about sex every 7-10 seconds to Right Themselves.

    This is A Shame Before GOD. So I think We the People have a Right to Know; What Is the name of this GOD they claim to know and say We should Trust? Is it Allah, Jesus Christ, Uncle Sam, the Almighty Buck or GOD Damn? I tremble in FEAR, as Thomas Jefferson did; cause I know GOD is Just; and the Almighty has No Attribute that will take sides with US in this Contest”. God asked these sons of guns; America, Will You Respect the Established GOD of Your Oath? But their answer appears to be; Hell No GOD We are Free of Religion” so don’t have to keep our Promises to You or US citizens.

    Well take it from me; If I were You’ll; I drop down to my knees like the cowardly lion of Oz. Id believe in Ghost, Jesus Christ, and FEAR GOD to the utmost as a woman scorned. One GOD Parent whose been in charge of Heaven, Earth and Hell All Along. Now I on the other Hand or Side of GOD’s am a Triple Agent, Angle and Angel much like Oliver North, but Ive been working for God all along. I truly love my God given government Job.2:1-9 “And Satan answered the Lord and said skin for skin, yeah all that a man hath will he give for his life; but put forth thine hand and Touch his Flesh and bone, and He will curse the to your face.

    Anyway, unless they can prove I am not who I claim, they have no reason not to believe my or his sworn testimony in Rev. 22:16 But if the congress and judges who swore their oaths on a Bible really believe in this Book; than it makes perfect sense and cents to me; that if God could beget a son using a normal virgin woman; then GOD could and would beget a daughter using the Mother of Harlots;(Rev. 17:1-9) especially since the Only thing GOD ever made that was not Good; is A Man Alone. duh Why wouldn’t God provide a wife for Him; just like She did for the 1st Adam, Moses, David and even Joseph his step daddy. Well as a Native New Yorker, born under the Flags of Lady Liberty and Justice, I hold a different Double Edge Sword, also known as the Word of GOD. I suggest instead of spending all that money to cover the breast of a statute, they claim offends them; that they remove the Blindfold from Lady Justice. She is not Deaf, Dumb, Blind or a Blond and she needs to identify the Masonic brothers who have severely retarded her Gender’s Abilities and Cut them back to the bone where she came from. As the Angel of Death, Queen of the Sourth or Lady of the Lake; I alone hold Excalibur.

    Thats why I also asked in my case that I be given the Top Ring on the Flag Flown by my employer,after they made me take a 6 week Zig Ziglar positive attiutude training while I was Pregant with my son. The word No stops me from having Affinity with Him as a decendant of the slaves and French American Indian Wars. I asked for at least 40 acres, and 4 Black mules as a show of Good Faith. But if they won’t Settle for that, than I want All My Land Back i.e., NY to Florida and West to Snake Canyon, due to An Anticipatory Breach of Contract, Honor, Oaths, and Promises sworn on a Bible; and Mass Religion Fraud caused by the denial of Religion Law such as the laws of Nature and Nature’s God.

    So in closing if; you can represent me; then I’m sure I can get You 1 Get Out Of Hell Free card


    Satan, aka Burnt Offering(Hebrews 10:7-10), God’s Other Kid and the Black Sheep in the Trinity Family (hey everybody’s got one)

  4. JT: “I was sympathetic with Citizens United and the free speech groups. In the end, I have to favor more speech than less in such conflicts. While I would have written a concurrence and have difficulty with aspects of the majority opinion, I probably would have voted to support the majority in the result in this case.”

    With all due respect sir, the Court’s decision in this case is as sound as the one they handed down in Kelo.

    As I explained to Mespo, the argument suffers from the fallacy of composition. The entire framework of our republic is based upon the social compact which is rooted in the distinction between usurpation and tyranny which in turn is based upon the distinction between alienable and inalienable rights. Corporations do not fall within the set known as ‘mankind born in a state of nature’ since they are creatures of statute; owing their existence to the body of law that created them. Accordingly, they are not even products of the mere gathering of individuals.

    Further, to lean on the crutch that ‘more speech is better than less’ is a load of tripe, with all due respect sir, since it begs the question as to the very order of operations from which rights are derived.

    To put it bluntly sir, the Ninth Amendment, as a rule of construction, is proof positive that corporations have no inherent right of political speech; they did not retain said right upon the creation of this republic, it was just bestowed upon them by the grace of a sovereign of five and the misguided sophists that support them.

  5. Heil Fascist Amerikka:

    quite simply you are wrong and the Prof is right on this one.

  6. burntoffering: “I don’t think anyone has ever come before a judge claiming to be Satan, the Daughter of God, Sister Spirit and espoused Bride of Jesus Christ before, and I can prove that I have been sent by the Lord. (Rev. 2:24, 3:9, 19:7-10, 21:9 and 22:16-17). I Have to use the Bible as my Proof and Warn Yall that Time Is Short. I was thrown down with Great Anger By GOD and SHe’s Really Pissed Off. So, Believe it or Not; I Satan and when I go to court, I’m willing to put my hand on a Bible and Promise to tell the whole truth and nothing but the truth so help me God; this time.”

    So if you’re Satan, does that mean Lord Scalia is your designated agent for service of process? Or is it really the other way around?

  7. EmpirePrincess,

    In opening the floodgates for corporate money in election campaigns, the Supreme Court did not simply engage in a brazen power grab. It did so in an opinion stunning in its intellectual dishonesty.

    I like the ring to that. Good link.

  8. May I put a slight twist on what BIL would say in regards to that article” T get up early to serve” :-))

  9. eniobob – Thanks for the link. Great article.

    And the Motion carried, with all present and voting Aye. No nays were heard.

  10. And some would say a few cards short of a full deck.

    Had to throw that in before somebody else did.

  11. Sorry Elaine my bad, I missed it. Maybe the corporations are just as sick with the people in Washington as the majority of us.

  12. Roughly 40 executives from companies including Playboy Enterprises, ice cream maker Ben & Jerry’s, the Seagram’s liquor company, toymaker Hasbro, Delta Airlines and Men’s Wearhouse sent a letter to congressional leaders Friday urging them to approve public financing for House and Senate campaigns. They say they are tired of getting fundraising calls from lawmakers — and fear it will only get worse after Thursday’s Supreme Court ruling.

    The court ruled that corporations and unions can spend unlimited money on ads urging people to vote for or against candidates. The decision was sought by interest groups including one that represents American businesses, the U.S. Chamber of Commerce. They argued that restrictions on ads they could finance close to elections violated their free-speech rights, and the court agreed.

    Congressional candidates who find themselves attacked by a flood of special-interest TV ads in the 2010 elections will likely reach out to their party’s biggest donors for money to help them counter the blitz.

    “Members of Congress already spend too much time raising money from large contributors,” the business executives’ letter says. “And often, many of us individually are on the receiving end of solicitation phone calls from members of Congress. With additional money flowing into the system due to the court’s decision, the fundraising pressure on members of Congress will only increase.”

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