Hillary: The Oral Argument

January 10, 2008, 3:50 pm

Posted by Peter Lattman

hillaryWe punted on the Voter ID case at the Supremes, but thanks to a loyal Law Blog reader found a more entertaining election law case. We wish we were in D.C. this morning for what looks like was a boisterous oral argument. Alas, we weren’t, so we’ll have to settle for this AP story which summarized the events.

The issue before the three-judge panel: whether a 90-minute movie excoriating Hillary Clinton was a campaign advertisement or not. If it is, the film would have to contain a disclaimer about its funding and restrictions on its broadcast. The group argues “Hillary: The Movie” and related TV ads are not political spots, even though she’s a presidential candidate.

James Bopp, the lawyer for the film outfit, said the movie should be considered “issue-oriented” speech, arguing that viewers aren’t urged to vote for or against the Democrat. This led to the following exchange, according to the AP:

Judge Randolph: “What’s the issue?”

Bopp: “That Hillary Clinton is a European Socialist. That is an issue.”

Judge Lamberth: “Which has nothing to do with her campaign?”

Bopp: “Not specifically, no.”

Judge Lamberth: “Once you say, ‘Hillary Clinton is a European Socialist,’ aren’t you saying vote against her?”

Bopp: disagreed because the movie did not use the word “vote.”

Lamberth: “Oh, that’s ridic…”

Bopp compared the film to TV news shows “Frontline,” “Nova,” and “60 Minutes.” That apparently prompted Lamberth to guffaw. “You can’t compare this to ‘60 Minutes,’” the judge said. “Did you read this transcript?”

Correction: An earlier version of this post mistakenly said the oral argument was at the D.C. Circuit. A reader tells us this was a 3-judge panel of one circuit judge and two district judges. The three-judge panels hear constitutional challenges to the campaign finance act and are prescribed by § 403 of the statute, which piggybacks on the procedure for such panels in 28 USC § 2284 — a “district court of three judges” appointed by the chief judge of the circuit; at least one member of the 3-judge panel must be a circuit judge. The section aso says that review of the judgment is by direct appeal to the Supreme Court. Fascinating!