Last week the United States Supreme Court held oral arguments over a fascinating question: whether or not the federal government has the authority to decide if a movie/documentary is a form of entertainment free from most broadcast restrictions or if the video is instead a lengthy attack ad – albeit 90 minutes long – against a candidate for federal office subject to the landmark 2002 federal campaign finance law. The BCRA (Bipartisan Campaign Reform Act) prevents “electioneering communications” within 30 days of a primary election or 60 days of a general election. The case is Citizens United v. FEC and Hollywood should be greatly alarmed by its implications.
David N. Bossie, President Citizens United
The movie in question is “Hillary the Movie” and as a low budget documentary it bills itself as providing the untold story of who Hillary Clinton is by presenting nearly “40 in-depth interviews with experts, opinion makers, and many of the people who personally locked horns with the Clintons.” Regardless of one’s perspective on the electoral merits of Hillary Clinton’s candidacy, it should be seen by industry insiders as truly remarkable that such a movie is subject to federal government regulation.
The case began when a conservative non-profit group, Citizens United, announced plans to show the movie at theaters and to make it available in households with TV-on-demand access on cable TV. Rather than let consumers decide for themselves whether to bring this movie into their home the FEC declared that it was in violation of the BCRA.
The legal issues in this case should have nothing to do with the movie’s political point of view because even though the movie includes a mix of facts and opinion regarding the actions and behavior of Senator Clinton throughout her political career, such presentations are constitutionally protected. The question is therefore whether the government should be able to re-categorize the packaging of this visual product created by Citizens United, i.e. the movie, and declare that it is a campaign ad subject to regulation under the BRCA. If so, what else could be subjected to this form of “neo-blacklisting?”
Remember this is a documentary being sold to the public and not affiliated with any campaign. Unfortunately it is the position of both the FEC and the Obama administration that the government does have the authority to regulate such videos and that they properly used it when the FEC prevented “Hillary the Movie” from being distributed by cable on demand.
Either the BCRA is being misinterpreted or the act is facially unconstitutional. Either way the decision by the FEC was a clear and direct unconstitutional restraint on free speech – speech that is protected by the First Amendment and speech that is the foundation for artistic freedom relished by every writer and director – nay all members of the artistic community.
The movie never formally encourages anyone to vote for or against Hillary Clinton or any other candidate for that matter, but it certainly presents an unflattering perspective of the former First Lady. But unless all political viewpoints – including unflattering ones – are going to considered campaign projects in the future the fact this one was “slanted” shouldn’t have raised an eyebrow. In fact Citizens United has previously produced several movies focusing on controversies of the day including the War on Terror, the United Nations, and illegal immigration. These other movies have been shown in movie theaters and the DVDs are sold by many retailers and Amazon.
Unfortunately if the FEC standard is upheld by the Supreme Court any of these topics could potentially be subject to government regulation. Moreover why stop with Citizens United? Neo-blacklisting could just as easily be used to silence Michael Moore or Oliver Stone – two individuals whose political agendas are readily apparent in their movies. Where does a movie cross the line from art to campaign advocacy? Would Al Gore’s “Inconvenient Truth” pass the government’s campaign test – it is clearly advocacy as are many other films and documentaries.
Instead of accepting Citizen United’s argument that the communication of its points of view on various topics – just like the communications by producers and directors all over the world – are a valuable contribution to the political process, the federal government and the FEC in particular believe that they can protect the American movie viewing public from the wrong kind of material.
This isn’t just dangerous; the difficulties of such an approach are obvious. In this very case, the government went so far as to argue that even the commercials promoting the movie, i.e. the movie trailer constituted “political electioneering.” Follow this closely – since the movie is a “campaign ad.” The ad for the “campaign ad” must also be considered a “campaign ad.” Where does this stop?
It is pretty apparent that the government has overreached. In fact, political discourse is precisely the reason we have the First Amendment. Regulating, delaying or preventing the outright distribution of political ideas is the very behavior of the government that the First Amendment was intended to prevent and just imagine what the movie industry would be like if this guarantee of freedom didn’t exist.
If upheld this type of regulation will prove to be a double-edge sword. Today its “Hillary the Movie” but tomorrow it will be Moore’s “9/11” and Stone’s “W” or any number of movies that have a “political” bent. Government should never have the power to decide for adults whether political commentary is too persuasive, caustic or unbalanced nor should it decide whether it can be viewed at home or at theaters.
Horace Cooper is a legal commentator and an adjunct fellow with the Institute for Liberty. (www.horacecooper.com)
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