Last September, the Supreme Court did something quite unusual: It cut short its summer vacation to hear Citizens United v. Federal Election Commission, a case held over from the prior term. The issue: can the U.S. government ban a nonprofit corporation, Citizens United, from distributing its 90-minute documentary — called Hillary: the Movie — on a video-on-demand basis. Last month, the Supreme Court in a 5 to 4 decision said no: free speech prohibits the government from banning speech, even political speech that criticizes politicians. President Obama specifically criticized the Supreme Court justices in his State of the Union address. If he knew what the Government’s lawyers were arguing, he might have a different view.
Supporters of Hillary Clinton would probably call this movie a hatchet job on her. Of course, there are those who would call Fahrenheit 911 a hatchet job on President Bush. And many people whom 60 Minutes has featured would have similar views about its video vignettes.
Political campaigns often produce film biographies of their candidates that read like hagiographies — biographies of the saints. But, independently produced biographies like Hillary: the Movie, are not flattering, so candidates do not like them. Neither does the Federal Election Commission (FEC). That is how the case got to the Supreme Court. Citizens United admits that federal campaign finance laws ban it from distributing this movie, but it argues that this ban violates the First Amendment. The FEC says that the feature length movie is “electioneering communications.” We can also call it political speech within the very core of free speech.
Last spring, the Supreme Court asked the Government how much power it is really claiming. In particular, does the statute authorize government bureaucrats to ban books? The Government’s answer was yes: “A campaign document in the form of a book can be banned.” Wow! The Government argued that the logic of recent precedent compelled that result — the precedent that Citizens United overruled.
It is no wonder that the ACLU — hardly a conservative organization — supports Citizens United, not the Government. The ACLU’s brief explained that the powers that the Government claims “threatened speech that lies at the heart of the First Amendment, including genuine issue ads by nonpartisan organizations like the ACLU.”
At reargument, our new Solicitor General, former Harvard Dean Elena Kagan, announced that the “government’s answer has changed.” She now conceded that the FEC cannot regulate books, but argued that the FEC could regulate pamphlets because of their political content. That’s not much of a concession. Roberts’ response: “We don’t put our First Amendment rights in the hands of FEC bureaucrats.”
Thomas Paine would not be pleased. In 1776, Paine published Common Sense, a pamphlet recognized as the most influential tract of the American Revolution. Paine published his pamphlet anonymously, because of fear of British censors. Now, we have come full circle.
During oral argument in the Citizens United case, Justice Ginsburg suggested that the Court deny free speech rights to corporations. “A corporation, after all, is not endowed by its Creator with inalienable rights.” Justice Sonia Sotomayor agreed. In his dissent, Justice Stevens argued that when the Framers adopted “the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind,” not corporations. This is a dangerous argument — virtually all newspapers, including this one, are corporations, not “individual Americans.” Most book publishers are corporations; ditto for movie studios.
The Constitution did not endow corporations with the right to the “pursuit of Happiness,” but it did give them at least two important rights as “legal persons.” One is that the government cannot take their property without just compensation, and the other is that the government cannot censor them. To save the statute, some members of the Court suggest taking away First Amendment rights for corporations. Could the government also expropriate their property? These are the “liberals.”
About a half-century ago in Joseph Burstyn, Inc. v. Wilson (1952) the Supreme Court held that the First Amendment protects more than political speech; it also protects movies created for entertainment. Now, the government is arguing that the First Amendment gives less protection to core political speech than it gives to Star Trek. Fortunately, the Court rejected that argument. If the First Amendment protects movies about fantasy it surely should protect movies about the lives of politicians.
Ronald D. Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University School of Law in Orange, California. Professor Rotunda specializes in constitutional law and professional responsibility.
