Supreme Court justices appeared dubious Tuesday that an anti-Hillary Clinton documentary ran afoul of federal campaign restrictions during last year’s presidential election.
The justices raised fears that the same rationale could be used to ban marketing of books or other types of content.
“Hillary: The Movie,” a 90-minute film made by the conservative group Citizens United, was deemed last fall by the Federal Election Commission to be “prohibited electioneering communication,” preventing the group from marketing and distributing the pic through a cable provider’s on-demand service last year.
A decision by the high court in the case would carry potential ramifications for the growing number of filmmakers seeking to capitalize on election-year debate with projects unabashed in their partisanship, as Michael Moore did in 2004 with “Fahrenheit 9/11.”
At issue is whether the Clinton film is a documentary or more akin to the advocacy of a 30-second campaign spot. Federal provisions prohibit corporations from giving directly to candidates, and the government also argued that the movie fell under the McCain-Feingold campaign finance reform law, which restricts the airing of certain political advertisements within 30 days of a primary or 60 days of a general election.
Some of the conservative justices signaled reservations about that provision Tuesday, suggesting that its application could extend to books, Amazon’s Kindle or even to action figures.
Chief Justice John Roberts asked, “So if Wal-Mart airs an advertisement that says we have candidate action figures for sale, come buy them, that counts as an electioneering communication?”
“If it’s aired in the right place at the right time, that would be covered,” Deputy Solicitor General Malcolm Stewart, representing the FEC, responded.
But Justice Ruth Bader Ginsburg gave the FEC some leeway and suggested that it was not difficult to determine that “Hillary: The Movie” was “targeted to a specific candidate for a specific office.”
“If that isn’t an appeal to voters, I can’t imagine what is,” she said.
The movie features harsh criticism of the then presidential hopeful, featuring interviews with such figures as Ann Coulter and Dick Morris, and delves into the “Clinton scandals of the past and present,” according to the film’s website. Justice Stephen Breyer even quipped, “It is not a musical comedy.”
The finance laws did not prevent the movie from being seen: It was advertised on the Internet, distributed via DVD and shown in some theaters. But Citizens United, led by its colorful and often controversial president, David Bossie, sought to raise revenue from video-on-demand showing and to market it through ads that would have been aired as Clinton sought the Democratic presidential nomination against Barack Obama.
Ted Olson, representing Citizens United, told the court that the federal election restrictions didn’t make sense in an era in which channels of distribution are ever changing.
The film, he said, “may be shown in theaters, sold on DVDs, transmitted for downloading on the Internet, and its message may be distributed in the form of a book. But its producers face five years in prison if they offer it in the home through the vehicle of video on demand.”
A lower court ruled in early 2008 unanimously that the movie could only be interpreted one way — to prove “Sen. Clinton is unfit for office” — and therefore fell under FEC scrutiny. Federal election provisions include requirements of when the film could be broadcast and disclosure of those who helped finance it.
Washington attorney Lawrence Noble, former general counsel of the Federal Election Commission, said existing finance law gives a lot of leeway in exempting journalists, filmmakers and entertainers, but noted that “where the line is between what entertainment companies can do and what other companies can do is a very blurry line.”
Bossie’s group, which also made an anti-Obama film later in the campaign, has drawn support from First Amendment advocates who fear the government is trying to classify who is a bona fide journalist or documentary filmmaker — and therefore exempt from election law — and who is not.
Lucy Dalglish, counsel for the Reporters Committee for Freedom of the Press, argued in an amicus brief that “by criminalizing the distribution of a long-form documentary film as if it were nothing more than a very long advertisement, the district court has created uncertainty about where the line between traditional news commentary and felonious advocacy lies.”
Michael Lumpkin, executive director of the International Documentary Assn., said the case of “Hillary: The Movie” is of concern as instantaneous technology allows more filmmakers to turn around politically charged material during an election year.
“This is probably something that we are going to see more of, films coming under the restraints that McCain-Feingold place,” he said.
He added, “The lines are getting more blurred than more distinct these days.”
Alexandra Pelosi, who has made a number of election-related documentaries, said in an email, “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 … liberals have been making documentaries for a long time and now that conservatives are doing it, we are all offended?
“A majority of documentaries are funded by liberals and corporations (i.e. Ken Burns and G.M.). Only the marketplace can determine if something is worth watching.”
The Supreme Court will issue its ruling by the end of June.