Tomorrow, the Supreme Court will take the highly unusual step of convening a special session to rehear arguments in the case Citizens United v. Federal Election Commission. This case has enormous implications for all Americans, but those of us who are filmmakers who depend on the First Amendment should pay particularly close attention.
On the last day of the June session, the Supreme Court unexpectedly decided to order a rehearing of our case in order to reexamine two cases that are the pillars of some of the more restrictive provisions of campaign finance law, and that, I believe, are unconstitutional infringements on the First Amendment.
Beginning with its decision in Austin v. Michigan Chamber of Commerce in 1990, the Supreme Court has systematically chipped away at the First Amendment’s protection of political speech, culminating in 2003 with McConnell v. FEC, the decision to uphold the McCain-Feingold Act. These decisions have so restricted the right to participate in the political process that during the original oral arguments in our case, the government actually took the position that the First Amendment does not prohibit the government from censoring books that contain phrases such as “Vote for Candidate X” and are commercially published soon before an election.
Think about that for a moment. We, as a country, have reached a point where our government has asserted that the Constitution permits it to jail the CEO of a company for commercially publishing a book critical of a politician standing for election!
I understand that many filmmakers in Hollywood are anathema to the films that I produce, and frankly, thinking about some of the people that inhabit that city, I’m comfortable with that sentiment. What I am not comfortable with, however, is the idea that the government believes that it has the right, the ability, and the power to tell any of us what we can and cannot say in our films.
Many Hollywood liberals who read about my case simply dismiss it as a film that criticized a member of an exalted Democrat family. They see it, like the Federal Election Commission does, as a long campaign ad that should be banned from the airwaves. What they don’t realize, however, is that if they do not stand up for the First Amendment today, it may not be there to protect them when they need it. Regulating speech, especially political speech, is a very slippery slope fraught with unintended consequences.
In our case, Citizens United produced Hillary The Movie, a documentary that focused on Hillary Clinton from an unabashedly conservative point of view. We released our film in January of 2008, but the Federal Election Commission prohibited us from advertising the film on television and radio or showing the film through cable “On Demand” services. We were allowed to make the film but were prohibited from telling anyone that it existed via broadcast advertising, and even those who would have sought out the film in an “On Demand” format were denied that opportunity to see it.
While we may be pioneering the legal argument, we are hardly the first filmmakers to be censored by the Federal Election Commission. Most people are not aware of this as the incident was not well publicized, but in 2004, shortly before banning Citizens United from advertising our first film, Celsius 41.11, Michael Moore was forced to take down his television and radio ads for Fahrenheit 9/11. If Michael Moore, the most commercially successful documentarian of our time can fall victim to government censorship, any filmmaker can.
Denying me the ability to promote or broadcast my film is functionally the same thing as prohibiting me from making it in the first place. If a film plays in an empty theatre because I’m not allowed to advertise it, or if viewers are denied the ability to watch on television, isn’t that pretty close to banning it outright? Whether the documentary is anti-Bush, pro-Obama, or critical of a Clinton should make no difference. Speech, and political speech above all else, should be protected.
This issue is non-partisan. People from across the political spectrum have every right to participate in the political process in whatever peaceful form they choose. Groups as varied as the California Broadcasters Association, ACLU, the AFL-CIO, the Chamber of Commerce, the NRA, and the Reporters Committee for Freedom of the Press have all joined in fighting for the First Amendment rights of every filmmaker and every citizen.
I am optimistic that the Supreme Court will side with the First Amendment in this case, but if we fall short, people must be aware of the dangers of this law and the extremes to which the government seems to be willing to go. This is not simply a case about my organization’s right to air a documentary, this is about all of our rights to participate in the political process, and no one should give that up without a fight. Citizens United Productions will release our 15th feature documentary this fall and we are determined to continue to exercise our right to free speech.