The Reporters Committee for Freedom of the Press urged the U.S. Supreme Court today to rule that campaign finance rules may not be used to suppress political documentaries without abridging press freedom.
The case, Citizens United vs. FEC, concerns a 90-minute film entitled Hillary: The Movie. Citizens United produced the film, a critique of Sen. Hillary Clinton, and sold it on DVD. But when it sought to make the film available on cable television by way of video on-demand, the FEC said the Bipartisan Campaign Reform Act of 2002 (the McCain–Feingold Act) prohibited airing of the film on television within 30 days of a primary or 60 days of a general election.
A three-judge district court panel agreed, finding that the film was so critical of Sen. Clinton that it was the equivalent of an “electioneering communication.” Violation of the statute, usually applied to paid political advertisements, is a felony.
In today’s friend-of-the-court brief, the Reporters Committee noted that “[t]hroughout American history, the news media’s coverage of government affairs has included commentary as well as reporting,” including both caustic attacks on public officials and explicit endorsements of candidates for office. The Reporters Committee pointed out that such news commentary has long been protected by the Supreme Court, which once declared it “difficult to conceive of a more obvious and flagrant abridgement 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.”
The Reporters Committee urged the Court to clarify that the FEC cannot regulate documentaries such as Hillary: The Movie or Michael Moore’s Fahrenheit 9/11, arguing that “[b]y 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.”