March 24, 2009
By Pete Williams
After a morning of very spirited argument about freedom of speech at election time, including banning books, the U.S. Supreme Court seemed prepared to rule in favor of the conservative backers of "Hillary: The Movie" -- and make a new exception to the laws restricting campaign ads.
The Hillary movie is a harshly critical 90-minute film that long-time opponents of the Clintons wanted to put on cable TV, as a video-on-demand offering, just as the primaries were heating up in January 2008. The federal government blocked it, deeming the film nothing more than a glorified attack ad, improperly paid for in part by corporate contributions. That ran afoul of the McCain-Feingold law intended to keep corporate money out of politics, even though the corporate contributions to the film came from a small non profit.
The moviemakers claimed that the ban was an unconstitutional restriction on free speech, and a majority of the Supreme Court appeared to agree.
Because the movie was to be a video-on-demand selection, people who wanted to see it would have to seek it out. That would make it different from the short attack ads that wash over captive television viewers, several of the justices suggested. "Isn't the First Amendment interest greater when the government is trying to stifle not only the speaker but also the person who wants to listen?" asked Justice Antonin Scalia.
The entire court seemed alarmed by the argument of a government lawyer, defending the ban on "Hillary: The Movie," who said the law would ban any potential electioneering message funded in any part by a corporation -- even a book publisher. Even a book could be banned before an election if a labor union paid an author to write it and then got a mainstream publisher to print it, said Malcolm Stewart of the Justice Department.