Posted on 04/01/2009 1:46:15 PM PDT by neverdem
Thanks to campaign finance reform, activists can go to jail if their movie makes a politician look bad.
"I'm a little disoriented here," Justice Antonin Scalia said during last week's oral arguments in a case involving legal restrictions on movies that criticize politicians. "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?"
Scalia's discombobulation was understandable, given that Deputy Solicitor General Malcolm Stewart had just claimed the First Amendment does not bar the government from telling interest groups what videos they may post online or what books they may publish. Such are the lengths to which Congress will be driven if it persists in its vain crusade to prevent "the appearance of corruption" by policing political speech.
The immediate issue before the Supreme Court is a 90-minute documentary, Hillary: The Movie, produced by the conservative group Citizens United, which wanted to make it available last year through video-on-demand cable channels. The cost of doing so, in addition to $1.2 million for cable system access, was a penalty of up to five years in prison.
According to the Federal Election Commission (FEC), the documentary qualified as an illegal "electioneering communication" under the Bipartisan Campaign Reform Act of 2002. That law prohibits corporations, including nonprofits like Citizens United, from sponsoring "any broadcast, cable, or satellite communication" that mentions a candidate for federal office within 30 days of a primary or 60 days of a general election.
In a 2007 case brought by Wisconsin Right to Life, the Supreme Court narrowed the definition of "electioneering communication" to cover only "express advocacy or its functional equivalent"—i.e., a message "susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." The FEC decided Citizens United's documentary was so critical of Hillary Clinton, at the time a senator running for the Democratic presidential nomination, that it could not reasonably be seen as anything other than an attempt to prevent her election.
The implication is that a more evenhanded documentary, one that had some nice things to say about Clinton, would have been legal. Show a movie that tells a politician's story in a neutral way (as judged by the FEC's censors), and you're OK. Show a movie that makes the politician look bad, and you can go to prison. What was that constitutional provision Scalia mentioned?
Members of Congress evidently had at least a vague memory of it when they passed BCRA, because the law includes an exemption for "a communication appearing in a news story, commentary, or editorial distributed through the facilities of any broadcasting station." This provision perpetuates the dangerously misguided notion that certain citizens—in this case, those who work for a TV or radio station—have a special claim to freedom of speech.
But the First Amendment belongs to all of us; there is no constitutional basis for distinguishing between a documentary produced by Citizens United and a documentary produced by CBS News. As the Reporters Committee for Freedom of Speech notes in a friend-of-the- court brief, "suppressing a documentary that is objectively indistinguishable from other news media commentary" creates "uncertainty about where the line between traditional news commentary and felonious advocacy lies."
Deputy Solicitor General Stewart declined to say the First Amendment requires Congress to draw such a line. He said "the difficult constitutional question" of whether the government may regulate the content of journalism produced by media companies such as Random House, the News Corporation, or the New York Times Company "has never had to be addressed."
Stewart was less shy about defending the constitutionality of extending the ban on "electioneering communications" to print and the Internet, logical steps if Congress is serious about suppressing messages aimed at changing people's votes. Indeed, given the convergence between the Internet and other methods of transmitting words and pictures into people's homes, BCRA's focus on "broadcast, cable, or satellite communication" will soon seem as quaint as the First Amendment.
Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist.
© Copyright 2009 by Creators Syndicate Inc.
Is that the position of the Obama administration??
A long time ago, in a galaxy far, far away there was a country called the United States of America. It had a document called the Constitution of the United States that specified the freedoms available to the citizens. It also limited the powers of its government.
It really seems a long time ago, and also far, far away.
But, you’ll admit, it was wonderful while it lasted.
Sigh..
the government actually claimed the right to censor anything they wanted and the media was totally silent?
If CAIR or PAW decided to do a hit-piece on Sarah Palin, or on Mitt Romney, or Bobby Jindal, there would be no problem. I’ve been fed up with this for some time now. We need some kind of breakout Supreme Court Ruling, or a wholesale denial of re-election of the Congress. A “big play”, as they say in sports. A “game changer”.
The Media of the United States will specifically approve and applaud the CENSORSHIP of anything that they disagree with. Period. That is why we so often hear merely the sound of crickets, when what we desire is to hear the roar of the presses. Alas, we speak of an age long past.
Also, the person who wrote the post following mine was dead on accurate. More’s the pity.
Well since we’re sliding down that slope, maybe we need another Nixon that will shut down every liberal newspaper and TV station in the country.
Though conservatives will be the only voices silenced.......
wow.
there would be no problem because our side would never sue them for it.
Nixon never did that.
Nixon created a lot of federal agencies like the EPA too.
Is that the position of the Bammer administration?
No actually it is much more complicated than a simple solution such as freedom of speech.
If you are a member of the Secret order of thieves commonly known as the DNC and/or Congress and/or Acorn and/or Communist Party US, Socialist Party US, Marxists for Amerika, and/or MoveIn.org then you have the government’s express permission to say anything, anywhere, anytime about anyone on their updated and approved enemies list, distributed via email every Friday and the rule that applies is if you get caught you go under the bus.
However all other individuals may not publish, write, post, whisper or any other form of communication including sign language and smoke signals anything about anyone but yourself.
Bush 'Assassination' Film Makes Waves Across the Pond
Not surprisingly, DU was all for it
Is that the position of the Obama administration??
Several justices asked the deputy solicitor general, Malcolm Stewart, if there would be any constitutional reason why the ban on documentaries and ads couldn’t be extended to books carrying similar messages. Stewart, speaking for a president who once taught constitutional law, said Congress can ban books “if the book contained the functional equivalent of express advocacy” for a candidate and was supported, even slightly, with corporate money. Such advocacy, Stewart conceded, could amount to negatively mentioning a politician just once in a 500-page book put out by a mainstream publisher.
Sounds to me as if the Court is ready to do a little cleaning up of a law that should never have gotten through to begin with.
Reagan blew it with Sandra Day O'Connor. GWB blew it counting on SCOTUS to toss McCain-Feingold. GWB also blew with the "new tone," among other things.
Right, and Poppy Bush blew it by appointing Souter, who is the worst of the bunch. If I’m not mistaken the Reagan administration had the good sense to reject any attempt at seating him.
GeronL: Is that the position of the Obama administration??
It very well may be.
Deputy Solicitor General Malcolm Stewart had just claimed the First Amendment does not bar the government from telling interest groups what videos they may post online or what books they may publish. Such are the lengths to which Congress will be driven if it persists in its vain crusade to prevent "the appearance of corruption" by policing political speech. The immediate issue before the Supreme Court is a 90-minute documentary, Hillary: The Movie, produced by the conservative group Citizens United, which wanted to make it available last year through video-on-demand cable channels. The cost of doing so, in addition to $1.2 million for cable system access, was a penalty of up to five years in prison.It's okay though, it only applies to conservatives. Thanks neverdem.
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