The Supreme Court reviews Hillary: The Movie.

Oral argument from the court.
March 24 2009 7:23 PM

The Supreme Court Reviews Hillary: The Movie

Prediction: 10 thumbs-ups, 8 thumbs-downs.

Hillary: The Movie: The critics rave.

"This film, which I saw—it is not a musical comedy."
—Justice Stephen Breyer

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

"As Justice Breyer said, it's not a musical comedy."
—Justice David Souter

Still from Hillary: The Movie. Click image to expand.
Still from Hillary: The Movie 

In 2008, a conservative group called Citizens United produced Hillary: The Movie, a 90-minute documentary in which Hillary Clinton, then seeking the Democratic presidential nomination, is variously described as "deceitful," "ruthless," and "cunning," as well as "dishonest," "reckless," a "congenital liar," and "not qualified as commander in chief." For ideological balance, Dick Morris says that "Hillary is the closest thing we have in America to a European socialist." The movie did not expressly urge voters to vote against her. It simply implied that friends don't let friends vote for evil people.

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Citizens United released the film in six theaters and on DVD, actions not subject to federal regulation. But when they sought to distribute the film by paying $1.2 million to sell it through a video-on-demand service, the Federal Election Commission contended that the film was no different from the kind of "electioneering communication" regulated under the McCain-Feingold campaign finance law. That was the 2002 statute that tried to limit the influence of big money on elections. If subject to the constraints of McCain-Feingold, the film could not be financed by corporate treasuries or broadcast within 30 days of a primary or 60 days of a general election. The federal court of appeals agreed with the FEC, finding that the movie could be interpreted as nothing but an effort to "inform the electorate that Senator Clinton is unfit for office." Citizens United appealed.

The question for the high court in Citizens United v. Federal Election Commission is whether the film is more like a 90-minute version of one of those swift-boat ads or more like The Federalist—core political speech that warrants the highest level of constitutional protection. At oral argument this morning, the government—seemingly unafraid of the latter comparison—takes the position that in the right circumstances, even books can be banned under campaign finance laws. And that's when the justices start hyperventilating.

Former Bush administration Solicitor General Ted Olson represents Citizens United, and because the justices had just screened the virulently anti-Clinton film, his claims that the movie simply "informs and educates" the public about important issues are generally met by stony silence. Nobody really thinks it is an episode of 60 Minutes. Olson does get the bunch hopping when he characterizes McCain-Feingold as "one of the most complicated, expensive, and incomprehensible regulatory regimes ever invented by the administrative state." Olson notes that the Reporters Committee for Freedom of the Press (which he accidentally calls "the Reporters Committee for the Right to Life") filed a brief on his side of the case urging that the Hillary movie "is indistinguishable from other news-media commentary." (Disclosure: I am on the steering committee of the Reporters Committee for Freedom of the Press; I am still wait-listed for Reporters Committee for the Right to Life.)

Several of the justices seem bothered by Olson's claim that Hillary did not represent electioneering. "This sounds to me like campaign advocacy," insists Justice David Souter. Justice Ruth Bader Ginsburg adds, "If that isn't an appeal to voters, I can't imagine what is."  To which Olson replies that the film is merely "a long discussion of the record, qualifications, history, and conduct of someone who is in the political arena, a person who already holds public office, who now holds a different public office, who, yes, at that point, Justice Souter, was running for office." But Justice Anthony Kennedy observes that a 90-minute attack ad is pretty much by definition more potent than a 30-second one: "[I]f we take this as a beginning point—that a short, 30-second campaign ad can be regulated—you want me to write an opinion and say, well, if it's 90 minutes, then that's different. It seems to me that you can make the argument that 90 minutes is much more powerful in support or in opposition to a candidate."

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