Top court reviews 'Hillary, the movie'

The case shows how campaign-finance reform can pose threats to the First Amendment - in the sense that there's a fine line, if any, between the Clinton film and a documentary.

March 26, 2009

By Tony Mauro

It isn't often that a government lawyer stands before the Supreme Court and acknowledges that yes, it would be constitutional to ban a book. But that is what happened on Tuesday, as Deputy Solicitor General Malcolm Stewart defended a campaign-reform law that treated an anti-Hillary Clinton movie in 2008 as an election ad - an advertisement that could be restricted, even banned, because a corporation paid for it.

(2005 photo by Mikki K. Harris/ USA TODAY)

What if a book contained everything that was in the movie, asked Justice Samuel Alito. After some back and forth, Stewart replied that theoretically, government could prohibit its publication if it used corporate funds.

"That's pretty incredible," said Alito, who noted that most publishing companies happen to be corporations.

It was a pivotal moment that clearly upset the court. Thankfully no current justice, no matter where he or she sits on the political spectrum, is comfortable with government book-banning. But Stewart's candid concession confirmed what has been building for years: Campaign-finance laws, however well-intentioned, are on a collision course with freedom of expression. What began more than a century ago as a noble effort to keep big corporations from corrupting politicians is veering awfully close to censorship.

As Justice Clarence Thomas wrote in a 2003 opinion criticizing the McCain-Feingold campaign-finance law, "Freedom of the press . could be next on the chopping block."

The case before the justices involved not a book or a newspaper, but a 90-minute film called Hillary: The Movie. It's tough stuff - "not a musical comedy," as Justice Stephen Breyer put it on Tuesday.

Unflattering movie

The film is full of unflattering footage of then-Sen. Clinton. It rehashes scandals ranging from the White House travel office firings at the beginning of her husband's administration in 1992 (remember that one?) to the pardons her husband gave at the end in 2000. Scattered throughout is commentary from bitter critics of the Clintons, from Ann Coulter to Dick Morris - all of it relentlessly negative, except for Coulter's flippant compliment of Hillary Clinton: "Looks good in a pantsuit."

In short, it's a nasty screed against our current secretary of State - and exactly what the First Amendment was meant to protect.

Yet because the film was produced by a corporation - a non-profit, conservative group called Citizens United - and came out in early 2008 when Clinton was running for president, it was treated as a campaign ad.

The movie was not censored, rest assured; it was shown in theaters and is still available on DVD at Citizens United's website. But when the group developed plans to distribute it as a video-on-demand, and to advertise it on TV, it ran into trouble. A federal court ruled that it was an "electioneering communication," subject to funding and disclosure requirements that ended up scuttling Citizens United's advertising and video-on-demand plans. It is hard to see how restricting this movie served the goal of reducing the corrupting effects of corporate campaign money.

No tears need be shed for Citizens United, which seems to relish testing the limits of campaign-reform laws. If it had structured the financing of its film a little differently - funding it through a regulated political action committee, rather than using its own money - it could have stayed within the law and would not be before the Supreme Court now.

Similarity to documentaries

But test cases often expose bigger problems. The problem here comes when you look strictly at the content of Hillary: The Movie. Like it or not, it conveys information in a hard-hitting, opinionated way, much like any documentary - even, daresay, Edward R. Murrow's 1950s exposÚs of Sen. Joe McCarthy. As the Reporters Committee for Freedom of the Press points out in a brief in the case, the movie "does not differ, in any relevant respect, from the critiques of presidential candidates produced throughout the entirety of American history." Those critiques, most would agree, should be free from any kind of government scrutiny, much less regulation.

If the Federal Election Commission can be dictating how Hillary: The Movie is financed and distributed, what's to prevent restrictions in the future on documentaries and even editorials, which are produced by (media) corporations and are often aimed at casting one side or the other in a negative light before Election Day?

Supporters of McCain-Feingold point to a provision of the law that specifically exempts news stories and commentary distributed in traditional ways, such as newspapers and broadcast. Stewart mentioned the exemption to the court on Tuesday as well.

But Stewart still said it would be constitutional for Congress to pass a law that covered books produced with corporate funds, if the books contained language supporting or opposing a candidate during a campaign. And with new avenues of distribution such as video-on-demand and new platforms for journalism - such as non-profit, non-media corporations - lines are being blurred. Do we really want a federal agency determining which documentary is permissible and which one is illegal, subjecting its producer to jail time?

That line-drawing could have a chilling effect on journalists in general and documentarians in particular, Citizen United's lawyer Theodore Olson told the court on Tuesday. "Where does he (a documentarian) edit the movie? What cuts?" asked Olson. "What does he leave on the . cutting room floor so that he won't have to go to . jail? He won't dare take a chance."

Tony Mauro, Supreme Court correspondent for Legal Times and Incisive Media, is a member of USA TODAY's board of contributors. He also is on the steering committee of the Reporters Committee for Freedom of the Press.