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Supreme Court hears free-speech case on 'Hillary: The Movie'

A majority of justices appear to agree that limits on corporate campaign spending violate free speech. The question is whether they will strike down some or all such restrictions.

March 25, 2009|David G. Savage

WASHINGTON — "Hillary: The Movie" had little effect on last year's election campaign, but it could have a profound impact on a century of election laws that restrict corporations from promoting or attacking candidates for public office.

The Supreme Court took up a case Tuesday involving the 90-minute documentary that attacked Hillary Rodham Clinton when she was running for president. The dispute focused on whether the government can limit the use of corporate money in political campaigns.

Since 1907, federal law has barred corporations from directly spending for or against candidates. The same limit was imposed on labor unions in 1947.

Those restrictions laid the foundation for today's campaign finance laws, including many state laws. But they have come under growing attack in recent decades by those who maintain that they violate 1st Amendment guarantees of free speech.

The Supreme Court now has a five-member majority in favor of the free-speech view. And during an oral argument Tuesday, the only question seemed to be whether the justices would strike down some of the legal restrictions on corporate-funded campaign ads or all of them.

Either way, "Hillary: The Movie" could prove to be a legal landmark.

Citizens United, a conservative group based in Washington, made its movie when Clinton was the front-runner for the Democratic presidential nomination. In the film, a parade of critics, including Newt Gingrich, Ann Coulter and Dick Morris, deride her as dishonest and dishonorable.

David N. Bossie, who heads Citizens United, said he modeled his movie after Michael Moore's "Fahrenheit 9/11," a 2004 documentary that ripped President George W. Bush.

The opinions in both movies are protected by the 1st Amendment. But Citizens United paid for its film in part with corporate funds. So when it sought to advertise the movie, the group ran into the federal campaign restrictions.

Long-standing laws require election-related groups to disclose who gave them money. The more recent McCain-Feingold Act also restricts the broadcast of corporate and union-funded election ads in the two months before an election. By simply mentioning a candidate's name, an ad can trigger the law's enforcement provisions.

Citizens United sued to challenge these restrictions. And during Tuesday's argument, former U.S. Solicitor General Theodore B. Olson, the group's attorney, urged the court to rule broadly and to declare that corporations have the same free-speech right as others to support or oppose candidates for office.

"Freedom is being smothered," he said, "by one of the most complicated, expensive and incomprehensible regulatory regimes ever invented by the regulatory state." There is something wrong with the law, he said, when an "ideologically oriented, small corporation" faces criminal penalties for violating campaign laws.

In the past, Justices Anthony M. Kennedy, Antonin Scalia and Clarence Thomas have said that limits on corporate-funded ads should be struck down as a "censorship scheme." That meant Olson needed only the support of Bush's two appointees to have a majority.

One of them, Justice Samuel A. Alito Jr., said that if the government has the power to ban broadcast ads, it could also ban books.

"That's pretty incredible," Alito said.

Deputy Solicitor General Malcolm Stewart, who defended the law on behalf of the Federal Election Commission, said the restrictions could not ban the publication of a book, but could limit a company's use of its money to put one out.

"I'm saying that Congress could prohibit the use of corporate treasury funds" to pay for a campaign book, he said.

The book-ban metaphor hung over the argument. Kennedy noted that books now can be read on Amazon's Kindle, an electronic device. If the Constitution in theory allows the government to forbid corporate-funded campaign books, he said, it also could restrict books that may be received from a wireless transmission.

Chief Justice John G. Roberts Jr. expressed surprise at that. "If it has one name, one use of a candidate's name, it could be covered?" Roberts asked.

"That's correct," Stewart replied.

"It's a 500-page book, and at the end it says, so vote for X. The government could ban that?" Roberts asked.

Yes, Stewart said again. The Constitution would allow a law that forbids the use of corporate funds to pay for such a book, he said.

The exchange left little doubt that a majority of the justices would side with Citizens United. How far the ruling will reach probably depends on the chief justice.

Roberts could press for a narrow ruling that would say a 90-minute documentary on a DVD deserves more free-speech protection than a 30-second attack ad. Or he could say that a small, nonprofit corporation deserves to be exempted from some rules, including disclosing its donors.

But the tenor of the argument suggested that the court's conservative bloc would seek broader free-speech protections for corporate-funded political ads.

In hopes of preserving the law, Justice John Paul Stevens asked a sly question near the end of the argument. Referring to a campaign-funding case from two years ago, he asked: "Do you think the chief justice's opinion correctly stated the law?"

"Of course," Olson replied, to laughter in the courtroom.

In that case, Roberts had written an interpretation of the McCain-Feingold Act as though it were constitutional. Stevens probably hoped the chief justice would stand by his own precedent.


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