At Issue Is Balance Between Political Speech and Free Speech
March 15, 2009
By Robert Barnes
"Hillary: The Movie" came and went without much of a splash last year. Reviews were not flattering, Hillary Rodham Clinton's presidential campaign waned and one devastating critique made sure that the scalding documentary would never become a blockbuster hit.
It came from a panel of judges in Washington that said "H:TM" was not really a movie at all.
The court sided with the Federal Election Commission and said the film was a 90-minute campaign ad "susceptible of no other interpretation than to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world, and that viewers should vote against her."
As such, the film produced by conservative activists at Citizens United fell under the tangle of broadcast and advertising restrictions in the McCain-Feingold campaign finance law that dictate how and when the movie can be shown and advertised.
But the ultimate impact of "Hillary: The Movie" may come at the Supreme Court, where this week justices once again will be challenged to decide how congressional intentions to curb the power of special interest groups can coexist with the First Amendment's protection of free speech.
"It seems to me the number one thing the First Amendment protects is communication about who we elect to run our government," said Theodore B. Olson, the Bush administration solicitor general who is representing Citizens United.
Because the movie is partially financed with corporate funds, it fell under restrictions in the Bipartisan Campaign Reform Act of 2002 -- as the McCain-Feingold law is formally known -- on "any broadcast, cable or satellite communications" that refers to a candidate for federal office within a certain time frame before an election. The law's requirement that ads clearly state the name of the group paying for them made Citizens United's planned 10-second media ads unworkable, the group said.
As a practical matter, that meant Citizens United could show "H:TM" in theaters and sell it on DVDs, but promoting it through its planned advertising campaign was restricted. And the prohibitions on broadcast just before an election doomed the group's hope of paying $1.2 million to have the movie available on cable systems around the country via video-on-demand services.
Citizens United, a nonprofit corporation with a budget of $12 million, has been one of the most relentless critics of Bill and Hillary Rodham Clinton and acknowledges that its movie has a "point of view." Indeed, it is a nonstop montage of Clinton's changing hairdos, interspersed with reports about various scandals during the Clinton White House years, critiques of her performance as a senator from New York and as a Democratic presidential candidate, and withering testimony about her alleged lack of character and honesty.
was the brainchild of Citizens United President David N. Bossie, a former congressional aide whose battles with the Clinton administration are legendary.
"I took my motivation 100 percent from Michael Moore" and Moore's anti-Bush documentary "Fahrenheit 9/11," Bossie said, in deciding to take Citizens United in a new direction in spreading the conservative message.
Seeing the power of Moore's film to energize liberals, Bossie recalled in an interview, "I said, 'Do we know anybody who makes movies?' "
The group turned the basement of the converted townhouse it occupies on Pennsylvania Avenue SE near Eastern Market into a production studio. It made a rebuttal to Moore called "Celsius 41.11" and, among its other films: "ACLU: At War With America," "Border War: The Battle Over Illegal Immigration" and "Hype: The Obama Effect."
"Hillary: The Movie" reunited a roster of old Clinton foes: former House speaker Newt Gingrich, Clinton pollster and confidant-turned-antagonist Dick Morris, and conservative commentator Ann Coulter, who takes a break from her denunciations to deliver the film's solitary compliment about the now-secretary of state:
"Looks good in a pantsuit."
And after the court accepted the case, Bossie hired Olson, a prominent Supreme Court practitioner and a movement conservative. Both men say Olson's involvement is not about a shared dislike of the Clintons but because, as Bossie said, he needed "the person who gave us the best chance to win" because of the importance of the case to Citizens United's aspirations.
Still, Bossie does note that "Hillary: The Movie" is dedicated to Olson's late wife, Barbara Olson, a conservative activist who was aboard one of the planes hijacked by terrorists Sept. 11, 2001.
Olson tells the court that the film is "best viewed as a rigorously researched critical biography" that presents interviews with journalists and former journalists, and segments on topics that were the subject of serious journalistic enterprise, such as the investigation of the firing of the White House travel staff.
"Such a discussion of a candidate's character, qualifications or fitness for office would have been commonplace on Meet the Press," Citizens United says in its brief.
Even though the law provides an exemption for the news media, Citizens United has drawn the support of a group of editors and reporters, the Reporters Committee for Freedom of the Press.
"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," the group says in a brief.
But the government, defending the FEC and the law, tells the Supreme Court that the film is "unmistakably" a political appeal.
"Every element of the film, including the narration, the visual images and audio track, and the selection of clips, advances the clear message that Senator Clinton lacked both the integrity and the qualifications to be president of the United States," its brief argues.
The very fact that Citizens United was willing to pay cable companies to make its film available on video-on-demand shows that it is no different from an "infomercial," the government brief said.
The court upheld the constitutionality of the campaign finance reform act in 2003; ironically, then-Solicitor General Olson won the case. But the justices were sharply divided, and several justices said it cannot be squared with the First Amendment. Its newest members, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., have not appeared willing to go that far but have voted to narrow the law's application.
Olson asks the court to declare the law unconstitutional as applied to the film -- and to overturn its decision that corporate funds cannot be used for political speech -- but offers a narrower way for his clients to win.
That would be to decide that "video-on-demand" is different from the act's forbidden means of broadcast.
Video-on-demand requires a person to actively select and watch a 90-minute film, Citizens United argues, instead of being confronted by the kind of political advertising McCain-Feingold sought to address. The reporters group notes that a "growing number of non-traditional journalists" are distributing their work that way.
Deciding that the FEC was wrong about video-on-demand would allow the court to avoid deciding the constitutional questions, according to Loyola Law School professor Richard L. Hasen, and offer "the narrow way out that Chief Justice Roberts and Justice Alito could be looking for."