If a political movie falls into theaters a few months before Election Day but no one is allowed to hear about it, does it violate the First Amendment clause on freedom of speech?
That’s the constitutional riddle Supreme Court justices will consider Tuesday: Do American citizens have the right to hear political messages of their choosing at the movies, on DVDs and on pay-per-view television, or are those messages subject to restraints under the 2002 campaign finance laws?
The case before the court concerns “Hillary: The Movie,” a documentary critical of Hillary Rodham Clinton that was produced by the conservative group Citizens United. It was released in theaters in January during the presidential primary season, which concluded in June.
But the Federal Election Commission told the producers of the movie that any advertisements for the film would have to carry the same disclaimer as political advocacy ads. The filmmakers chose not to advertise at all and sued the FEC.
The documentary focuses on five aspects of the political careers of Mrs. Clinton and husband Bill Clinton: the firing of the White House travel staff, accusations of retaliation against a woman who accused Mr. Clinton of sexual harassment, whether Mrs. Clinton adhered to campaign finance restrictions while running for the Senate, Mr. Clinton’s pardons, and Mrs. Clinton’s record on health care, job creation and national security issues.
“Although Sen. Clinton’s candidacy was the backdrop for the 90-minute documentary, neither the movie’s narrator nor any of the individuals interviewed during the movie expressly advocated her election or defeat as president,” Theodore B. Olson, the former U.S. solicitor general who is representing Citizens United, wrote in the appeal.
Mr. Olson also is asking the court to determine whether the disclaimer and disclosure requirements of the Bipartisan Campaign Reform Act (BCRA), sponsored by Sens. John McCain, Arizona Republican, and Russ Feingold, Wisconsin Democrat, can be applied to advertisements for documentary films.
Citing the First Amendment provision that “Congress shall make no law … abridging the freedom of speech,” Mr. Olson said applying the McCain-Feingold law to documentary movies violates that right.
“This constitutional injunction evidently was not in the forefront of Congress’s mind when it enacted BCRA, a statute that imposes sweeping restrictions on core political speech,” Mr. Olson said. “But presumably, that statute did not diminish ‘our profound national commitment to the free exchange of ideas.’ ”
The McCain-Feingold law requires that television ads disclose which individuals or groups paid for them and do so “in a clearly readable manner” for at least four seconds. David Bossie, president of Citizens United, said he planned to run two 10-second commercials, but that the disclaimers would eat up nearly half his time.
“I can make the movie and put it into as many theaters as I want. I just can’t let anyone know it exists,” Mr. Bossie said. “It’s outrageous on its face.”
“Ours is not a political campaign, but an ad to buy a movie ticket or DVD, so it is harming the marketing of my film by insisting on a disclaimer that they have no right to insist upon. So I refused and sued them, and here we are,” Mr. Bossie said.
One commercial called “pants” featured conservative author Ann Coulter saying Mrs. Clinton “looks good in a pantsuit.” Then the announcer concludes “now, a movie about everything else,” about the former first lady.
The film was financed by $1 million in donations, almost all from individuals, with the exception of two donations of $1,000 that came from corporations, which Citizens United has not identified.
Mr. McCain and Mr. Feingold, as well as former Reps. Christopher Shays, Connecticut Republican, and Martin Meehan, Massachusetts Democrat, filed an amicus brief with the court siding with the FEC.
A ruling in favor of Citizens United would create a loophole that would allow corporate and union funds to be used to advocate for or against candidates without disclosure, they said.
“Citizens United’s argument that candidate advocacy via on-demand video is so different from traditional advertising that it should be open to no-holds-barred corporate and union financing of electioneering messages overlooks that such advocacy poses the same threats to the electoral system as does corporate funding of more traditional forms of election advocacy,” the brief said.
“The arguments advanced by Citizens United threaten to undo much of what [the lawmakers] accomplished in achieving the enactment of BCRA, to roll back long-standing provisions of the Federal Election Campaign Act that predate BCRA, and even to jeopardize statutes requiring disclosure of corporate and union political and lobbying expenditures outside the field of candidate elections,” the brief said.
Liberal filmmaker Michael Moore has not publicly commented on the case.
His anti-Bush film “Fahrenheit 9/11” was released June 25, 2004, and therefore was not restricted by the time frames for political ads - 60 days before a general election and 90 days before a primary.
The makers of “Hillary: The Movie” solicited an FEC ruling before deciding how to market their film; that ruling went against them and put the case into motion. The FEC never had an occasion to rule on “Fahrenheit 9/11.”