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(s)Elections See other (s)Elections Articles Title: Supreme Court will likely rule in favor of anti-Hillary film: Toobin Opponents of campaign finance reform may have the last laugh if conservative dislike of Hillary Clinton results in the Supreme Court weakening or overturning McCain-Feingold. A documentary critical of Secretary of State Hillary Clinton called “Hillary: The Movie” is now before the court for consideration on whether it constitutes “electioneering communication,” which as The New York Times reports, may not be broadcast during certain time frames before elections. If the court finds that the film does constitute electioneering communication, it could call into question whether McCain-Feingold squares with the First Amendment’s protections of free speech and a free press. Produced by a nonprofit conservative advocacy group called Citizens United, the documentary was originally intended to be available for viewing through cable video-on-demand service during the 2008 Democratic primaries. The Times says that the Federal District Court sided with the Federal Election Commission’s contention that the film constituted electioneering communication and barred its broadcast unless Citizens United agreed to disclose who paid for the film, which they refused to do. Judging from the questions raised by justices during Tuesday’s hearing on the case, there is a real concern that upholding the lower court’s ruling could lead to the banning of electronic books critical of political hopefuls during election seasons. The Associated Press writes on the day’s proceedings. “Government lawyers argued that conservative group Citizens United's 90-minute documentary ‘Hillary: The Movie’ is a political ad just like traditional one-minute or 30-second spots and therefore regulated by the McCain-Feingold law.” Deputy Solicitor General Malcolm Stewart said the test of what constitutes a political ad “does not depend on the length or the way it’s communicated,” which, prompted questions from the justices on whether the federal government would also subject books to the same political advertisement test. Stewart responded that the government could do that “’if the book contained the functional equivalent of express advocacy,’ the test used in regulating broadcast, cable or satellite communication released 60 days before a general election or 30 days before a presidential primary or convention,” reported the AP. That oversight could extend to electronic books (which are becoming increasingly popular thanks to devices such as Amazon’s Kindle) said Stewart. Justice Antonin Scalia said the distribution method distinguished the movie from a television advertisement, Bloomberg reports. “You really have two interested people: the speaker and the listener who wants to get this,” Scalia said. “Isn’t that a somewhat heightened First Amendment interest than just over- the-air broadcasting of advertising, which probably most listeners don’t want to hear?” “Stewart pointed out that by ban, he meant prohibit ‘use of corporate treasury funds.’ Campaign regulations require the backers of political ads to be identified and prohibit corporations and unions from paying for ads that run close to elections and single out candidates,” writes the AP. The case has drawn the attention of press advocates, asserts The Times. The Reporters Committee for Freedom of the Press has filed a brief in support of the film, which says it “does not differ, in any relevant respect, from the critiques of presidential candidates produced throughout the entirety of American history.” The Obama Justice Department is contending the film is an infomercial and not protected news media commentary because Citizens United proposed to pay a cable company to make its film available. In 2004 Citizens United tried to keep liberal documentary filmmaker Michael Moore from advertising "Fahrenheit 9/11" during the run-up months of the presidential election. However the FEC dismissed their complaint when Moore said he had no intention to run ads for the film during election season. The Supreme Court is expected to issue a ruling before early summer. CNN's legal analyst, Jeffrey Toobin, said Citizens United “may well win” and that the court would continue the gradual chipping away of McCain-Feingold. "The court has said that in various ways over the years that the First Amendment is not just to benefit the speakers, it’s to benefit the society…We all benefit by having a free exchange of ideas and any kind of censorship doesn’t just penalize the speaker, it penalizes all of us who might want to listen,” Toobin said.
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