Supreme Court hears political documentaries case

The U.S. Supreme Court today heard oral arguments in Citizens United v. FEC, a case that may decide whether the Federal Election Commission (FEC) may forbid the distribution of a political documentary in the run-up to a presidential election.

The film at issue today is Hillary: The Movie, a 90-minute documentary focused on then-presidential candidate Hillary Clinton’s White House bid. The film never urged viewers to vote for or against any candidate, but it sharply questioned Clinton’s fitness for office.

A federal district court held that the film’s distribution via video-on-demand could be regulated in the run-up to an election – or even suppressed – under the Bipartisan Campaign Reform Act of 2002 (BCRA), popularly known as the McCain-Feingold Act. 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.  

These communications are subject to a variety of restrictions. For example, corporations and labor unions may not fund them except through Political Action Committees (PACs).

The case presents a variety of issues, including whether groups may be required to disclose donors who paid for advertisements. But the issue that most directly affects the press is the FEC’s application of the BCRA to a feature-length political documentary rather than traditional 30- or 60-second ads.  

Former Solicitor General Theodore B. Olson, representing Citizens United, argued that when drafting the BCRA, “Congress [was] concerned about these short, punchy ads that you have no choice about seeing.” But Justice David Souter questioned the importance of a distinction based on length, saying that “the difference between 90 minutes and one minute, either for statutory purposes or constitutional purposes, is a distinction that I just cannot follow.”

Justice Antonin Scalia disagreed, saying “it may well be that – that the kind of speech that is reflected in a serious 90-minute documentary is entitled to greater constitutional protection. And it may well be that the kind of speech that is not only offered but invited by the listener is entitled to – is entitled to heightened First Amendment scrutiny.”

The FEC’s argument, by Deputy Solicitor General Malcolm L. Stewart, was dominated by questions from the traditionally conservative justices about how broadly the First Amendment allows FEC authority to reach. Chief Justice John Roberts asked whether a sign held up in Lafayette Park advocating a candidate could be prohibited without violating the First Amendment. Stewart responded that it could not be banned outright, but that corporations could be banned from funding the activity except through PACs.  

Justice Anthony Kennedy asked whether an electronic book could be banned in the run-up to an election. Stewart again responded that “it can’t be prohibited, but a corporation could be barred from using its general treasury funds to publish the book and could be required to use – to raise funds to publish the book using its PAC.”  

Justice Samuel Alito called “pretty incredible” the idea that a book advocating a candidate could be banned. When Stewart responded that the ban would apply not to the book, but merely to corporate general treasury funds that would underwrite it, Alito responded that “most publishers are corporations.”

The justices also wrestled with the BCRA’s media exemption. The statute exempts 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 Olson called the exemption too narrow and too focused on traditional media corporations, noting that the decision below makes it “a felony for a small, non-profit corporation to offer interested viewers a 90-minute political documentary about a candidate for the nation’s highest office, that General Electric, National Public Radio, or George Soros may freely broadcast.”

Olson quoted from a friend-of-the-court brief the Reporters Committee filed in the case. While not evaluating the merits of Hillary: The Movie, the brief argued that a meaningful media exemption could not be based on the government’s subjective determination of what was a “news organization.” The brief also pointed out that the Supreme Court repeatedly has invalidated restrictions on news media commentary.  

Scalia also criticized the government’s view that the BCRA’s exemption for the institutional media was sufficient to protect press rights, asking: “You think in 1791 there were – there were people running around with fedoras that had press – little press tickets in it, ‘Press’? Is that what ‘press’ means in the Constitution? Doesn’t it cover the Xerox machine? Doesn’t it cover the right of any individual to – to write, to publish?”   

Later, Scalia seemed exasperated at the breadth of the government’s argument, asking Stewart: “We are dealing with a constitutional provision, are we not, the one that I remember which says Congress shall make no law abridging the freedom of the press? That’s what we’re interpreting here?”