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From the Winter 2009 issue of The News Media & The Law, page 32. When Congress passed the Bipartisan Campaign…

From the Winter 2009 issue of The News Media & The Law, page 32.

When Congress passed the Bipartisan Campaign Reform Act of 2002 (BCRA), popularly known as the McCain–Feingold Act, traditional news and editorial content appeared to be beyond its scope. Indeed, the act was squarely aimed at what the Supreme Court called a “virtual torrent of televised election-related ads.” It even included an explicit exemption for the news media.

But last January, a federal court said the Federal Election Commission (FEC) could go well beyond regulation of paid, 30-second issue ads to suppress a feature-length political documentary in the run-up to an election. Now, the Supreme Court will decide whether this decision comes too close to regulating traditional functions of “the press.”

“Not qualified to be our commander in chief”

The BCRA created new regulations on speech that Congress considered to be “electioneering communications” — broadcast statements that refer to “a clearly identified candidate for Federal office,” and are made within 60 days of a general election or within 30 days of a primary or caucus. Such communications are subject to a variety of restrictions. For example, corporations and labor unions may not fund them except through Political Action Committees.

At first, the new restrictions seemed confined to traditional campaign advertising. “There is no indication in the congressional record that Congress intended BCRA’s restrictions on political speech to extend to documentary films,” said Matthew D. McGill of Gibson, Dunn & Crutcher LLP, one of the attorneys representing the nonprofit plaintiff in Citizens United v. FEC in the Supreme Court. “When enacting BCRA, Congress’s debates focused almost exclusively on 30- and 60-second political advertisements broadcast through traditional media.”

But when Citizens United produced a film titled Hillary: The Movie — a 90-minute documentary focused on then-presidential candidate Hillary Clinton’s political history and her White House bid — the FEC said the BCRA restricted distribution of the film.

The film and related ads never urged viewers to vote for or against any candidate, though they were anything but even-handed. According to court records, one ad featured Dick Morris saying, “Hillary is the closest thing we have in America to a European socialist,” and the film featured another commentator saying, “I can tell you beyond a shadow of a doubt that uh, the Hillary Clinton that I know is not equipped, not qualified to be our commander in chief.” Citizens United released the film on DVD and in theaters to coincide with the dates when many states held primary elections or party caucuses.

Citizens United also planned to show the film on television by way of a new nationwide video on-demand channel, “Elections ‘08.” Other documentary films have been distributed via video on-demand, including Michael Moore’s Fahrenheit 9/11. And video on-demand is increasingly used by news organizations — for example, local television stations throughout the country have contracted with local cable providers to distribute their newscasts via video on-demand.

Still, the FEC claimed that Hillary: The Movie was an “electioneering communication” and that showing the film by way of video on-demand in the run-up to the primaries would violate campaign finance restrictions in the same way broadcasting a 30-second ad funded by a corporation would.

The “functional equivalent of express advocacy”

Citizens United took the issue to federal court, arguing that the BCRA’s restrictions on the film and related ads violated the First Amendment. A special three-judge district court panel in Washington, D.C. sided with the FEC, noting that the Supreme Court refused to strike down the BCRA after a facial challenge in McConnell v. FEC.

The district court found that the FEC can regulate speech that “is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” After viewing the film, the court concluded that the only reasonable interpretation of its purpose was “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.” The court also found that, while Citizens United could broadcast ads for the film, they would be subject to the rules requiring disclosure of donor names and a disclaimer on the ads saying who was responsible for the advertising.

Citizens United bypassed the circuit court and appealed directly to the Supreme Court, using a procedure created for challenges to campaign finance restrictions. The Supreme Court said it would consider four issues, one of which directly affected the news media — “Whether a broadcast feature-length documentary movie that is sold on DVD, shown in theaters, and accompanied by a compendium book is to be treated as the broadcast ‘ads’ at issue in McConnell, . . . or whether the movie is not subject to regulation as an electioneering communication.”

Citizens United argued in response that the criticisms in the film “would have been commonplace on Meet the Press or any other of the countless television and radio programs populated by political commentators.” It added that “[t]he First Amendment does not admit of a view of the freedom of speech under which only those fortunate enough to have their speech sanctified by the FEC as a ‘news story, commentary, or editorial’ may say what they wish about a candidate’s qualifications and fitness for office, while all others must keep their discussion of candidate qualifications so anodyne as not to pique the interest of even the most aggressive FEC regulator, risk felony prosecution, or (as the FEC undoubtedly prefers) remain silent.”

A long history of protecting editorial independence

The Reporters Committee filed a friend-of-the-court brief in support of Citizens United, arguing that allowing FEC regulation of the film poses a risk to editorials and other news commentary. “Many editors would choose not to run the type of commentary seen in Hillary: The Movie for a variety of reasons — its political viewpoint, its length, or its tone, for example,” the brief argued. “These editorial decisions, though, cannot create legally meaningful distinctions without forcing the courts to sit as superior editors of the press.”

The brief also made clear that political commentary in the film is nothing new. In every American election, the press has reported on the candidates’ qualifications for office, distributing commentary that often attacks one candidate and favors another. To take the most obvious example, “[s]ince at least the 1800 presidential race, American newspapers have endorsed candidates and provided commentary praising their favored candidate (and often denigrating the opponent).”

For just as long, the news media has criticized public officials and candidates, often publishing indictments of their experience and qualifications. In 1824, often considered the first election to feature active campaigning by candidates, many newspapers critiqued the backgrounds of candidates John Quincy Adams and Andrew Jackson. Similarly, Edward R. Murrow in 1954 famously excoriated Sen. Joseph McCarthy, asserting that “[t]he actions of the junior Senator from Wisconsin have caused alarm and dismay amongst our allies abroad, and given considerable comfort to our enemies.”

Such commentary has long been among the most jealously protected speech in American courts. For example, the U.S. Supreme Court in the 1966 case Mills v. Alabama invalidated an Alabama law that made it a crime for newspapers to publish editorials on Election Day, concluding that it would be “difficult to conceive of a more obvious and flagrant abridgment of the constitutionally guaranteed freedom of the press” than a criminal statute that “silences the press at a time when it can be most effective.” Similarly, in a 1974 case called Miami Herald Publishing Co. v. Tornillo, the Supreme Court struck down “right of access” laws intended to encourage diverse viewpoints in the media, refusing to “intru[de] into the function of editors” by interfering with “the exercise of editorial control and judgment.”

The BCRA itself even included an express media exemption for speech that “[a]ppears in a news story, commentary, or editorial distributed through the facilities of [a] broadcast, cable, or satellite television or radio station.”

But Citizens United’s McGill argues that this case is an example of just how narrow and subjective the media exemption is. “Presumably, the FEC concluded either that Citizens United was not a member of the ‘news media,’ or that its movie was not a ‘news broadcast,’” McGill said. “In either case, the determination seems clearly to turn on the FEC’s subjective view of an information provider and the content of its speech.”

Fears of expanding regulation

As campaign finance restrictions continue to expand, some Supreme Court justices have warned that they risk impinging on traditional news media commentary. Dissenting from the McConnell decision, which said the BCRA was constitutional, Justice Clarence Thomas warned that “[t]he chilling endpoint of the Court’s reasoning is not difficult to foresee: outright regulation of the press.”

Thomas added that “none of the reasoning employed by the Court, exempts the press,” in part because “of the difficulty, and perhaps impossibility, of distinguishing, either as a matter of fact or constitutional law, media corporations from [nonmedia] corporations.”

McGill agreed, saying suppression of Hillary: The Movie may just be the beginning. “The media exception is only as protective as the regulator wants it to be, and that’s not much of a safeguard for a free press.”

The case is scheduled to be argued on March 24, 2009.