- - Wednesday, September 24, 2014

ANALYSIS/OPINION:

How did a robust and skeptical state like Colorado, with a century-long history of electing conservatives and Republicans, turn so blue with the 2008 election? That’s the subject of “Rocky Mountain Heist,” a documentary by the advocacy group Citizens United. A blue federal judge on Monday decided that Citizens United is not entitled to tell the story of how wealthy millionaires hijacked the state’s politics.

This sounds familiar to anyone who has been listening. Citizens United was blocked by the blue Federal Election Commission in 2008 from airing a documentary about Hillary Clinton. Two years later, the Supreme Court ruled that the commission violated the group’s First Amendment right to free speech.

The new, hourlong documentary about Colorado doesn’t endorse candidates. It makes reference to a number of elected officials, including Gov. John Hickenlooper and Sen. Mark Udall, both Democrats, who are struggling to survive tight re-election battles in November. They may need help, but not from the courts.

The Colorado secretary of state declared the film a form of “electioneering communications” that under state law could not be distributed unless the group discloses its donors. Citizens United has sued to exercise its right to air the new documentary, pointing out that the traditional media outlets, such as newspapers, magazines, radio and television stations, are not bound by such strictures.

The Denver Post endorsed Barack Obama in 2008, and again in 2012. Leonardo DiCaprio, the Hollywood actor, has made documentaries for broadcast, stoking hysteria about global warming. They, too, are entitled to free speech.

But U.S. District Judge R. Brooke Jackson, appointed by President Obama, discriminates against how free speech is delivered and who can deliver it. The Denver Post may endorse a candidate, but a documentary filmmaker can’t.

Citizens United comes before this Court,” the judge wrote, “hoping to unravel 40 years of precedent by reframing the issue as one of content and viewpoint discrimination. The Court is not persuaded.”

Makers of documentaries are understandably wary of making their friends and donors public. The documentary makers put their names on the film and can be held responsible for what they say. Donors are often abused. Brendan Eich, the CEO of the popular Web browser Mozilla Firefox, was sacked because he sent a $1,000 personal donation to backers of Proposition 8 in California — a measure to support traditional marriage, a proposition subsequently endorsed by a decisive majority of Californians. The IRS disclosed Mitt Romney’s donation to a traditional-marriage nonprofit, a disclosure forbidden by federal law.

David Bossie, the founder of Citizens United, says the fight has just begun. “As we did in Citizens United v. FEC — where we lost at the trial court — we will appeal this decision to preserve our First Amendment rights,” he said.

Lawyers by training are confused by clarity, taught as they are to express themselves in mumbo-jumbo, and the words of the First Amendment are plain and clear: Congress shall make no law abridging freedom of speech, not even with artful “workarounds.” The Colorado Constitution is equally clear: “No law shall be passed impairing the freedom of speech; every person shall be free to speak, write or publish whatever he will on any subject, being responsible for all abuse of that liberty.”

Campaign-finance reform is often employed as a “workaround.” It’s not clear what part of “no” Judge Jackson does not understand. But “no law” has only one meaning. It means “no law.” Criticism of politicians shouldn’t be banned merely because it documents a politician’s mistakes or shortcomings.

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