Noticeable voices have been missing from the array of free speech advocates and campaign finance reformers who have weighed in to Supreme Court as it considers the case of the documentary “Hillary, the Movie”: Documentary filmmakers themselves.
In a rare early session, the Court heard arguments last month on whether the movie, a slamming indictment of then-presidential candidate Hillary Clinton that was made by conservative group Citizens United, in part with corporate money, is essentially a campaign ad. Campaign finance laws prohibit corporations from engaging in “electioneering communications” on TV within 30 days of a primary or 60 days of an election.
Free speech advocates have come to Citizens United’s defense, warning that the government’s efforts to decide just what is “electioneering communication” is too broad to pass muster. “Unconstitutionally vague,” attorney Floyd Abrams writes on behalf of Sen. Mitch McConnell (R-Ky.). Even the American Civil Liberties Union has filed a brief supporting Citizens United, which still sells another documentary it made called “ACLU: At War with America.”
But in the documentary community — or the traditional version of it — First Amendment concerns aren’t quite so clear cut.
Eddie Schmidt, the president of the International Documentary Assn., says that while he’s a member of the ACLU, he disagrees with their position in this case, citing the ramifications of corporate money being treated as free speech.
“I personally don’t think that having these laws upheld would prohibit great films from getting made or seen,” he says. “Most documentaries are made about issues and humanity in general, and rarely are they hatchet jobs on a candidate.” He adds that it is apparent that “Hillary” is an “infomercial.” “It is clear that this is coming to you from an advocacy group; it is not coming to you from a filmmaker.”
The association itself, however, has taken no position.
D.A. Pennebaker, the veteran filmmaker who with Chris Hegedus made the 1993 movie “The War Room,” says he recognizes the problem of releasing such a partisan documentary so close to a primary or election with little chance for the other side to mount an equal response.
“You don’t have a chance to weigh [the documentary] in some way and decide what is the truth, which is basically what is behind the First Amendment. You want to be able to get at the truth by hearing different voices,” he says.
Nevertheless, he wonders whether the case is a bit futile. With so many avenues to release a movie now, including the Internet, he has the sense that “they are arguing about bicycle parts and no one is riding bicycles anymore.”
“No matter who says it is legal or illegal, there is a way to get it out,” he says. “Hillary” was always available on DVD.
Alexandra Pelosi, the maker of the 2000 election documentary “Journeys with George” as well as works about the 2004 and 2008 campaigns, told Variety in March that, “as a viewer, I wouldn’t want to watch this movie. And I wouldn’t want anyone to make a movie like this about anyone I know.”
“But,” she added, “liberals have been making documentaries for a long time, and now that conservatives are doing it, we are all offended?”
In many ways “Hillary, the Movie” evokes a trend in the world of non-fiction filmmaking over the past decade or so: Projects strident and unabashed in their point of view.
The case has its roots in Michael Moore’s 2004 documentary “Fahrenheit 9/11.” That summer, Bossie filed a complaint with the Federal Election Commission, claiming that its scathing portrayal of President George W. Bush amounted to “express advocacy” against his candidacy. In fact, there was concern among the film’s distributor, Lionsgate, of the extent to which it could feature Bush in commercial spots promoting the movie and the DVD so close to the election.
The FEC rejected Bossie’s complaint in 2005, concluding that the movie was a “bona fide commercial activity” exempt from the federal regulations, and that its ad spots could not be seen as “electioneering.”
Those are the same laws that Bossie is now fighting. Ted Olson, who is representing Citizens United, argues that the situation with “Fahrenheit” is in some respects “analogous” to “Hillary.” Abrams writes that Moore “wiggled away from the FEC’s reach” in releasing the movie.
Chris Lehane, the Democratic political consultant who worked on the campaign for "Fahrenheit"’s release, does not share the comparisons. The McCain-Feingold campaign finance reform was an attempt to reign in corporate spending in campaigns, he notes, and “the best you may be able to do is an approach similar to what constitutes the standard in determining whether something is pornography or not — the famous ‘you know it when you see it standard.’” “Hillary,” he argues, was a “fig leaf for a shadowy political campaign” whereas Moore’s films and other documentaries are “actual real, commercial endeavors.” Moore has shared similar sentiments in comments he has made about the case while promoting "Capitalism: A Love Story."
There’s another distinction that concerns the Reporters Committee for the Freedom of the Press: the exemption for journalists. The group’s counsel, Lucy Dalglish, writes that the law doesn’t take into account non-traditional journalists distributing their work in new ways, and that “Hillary” is “objectively indistinguishable from other news media commentary.” The case, she writes, has “created uncertainty about where the line between traditional news commentary and felonious advocacy lies.”
In other words, it’s a movie the government has banned from TV. That may send a chill in some quarters, but in the language of Hollywood, it’s known as a marketing pitch.