Hillary Clinton Heading to the Supreme Court?

Posted on November 17, 2008 by Kevin Goldberg

Maybe, but not as a Justice.  Nor, technically, as a litigant.  Instead, she's at the center of a controversy involving whether a documentary film entitled "Hillary: The Movie":

 

is an “electioneering communication” under the Bipartisan Campaign Reform Act of 2002 (also known as "BCRA" or the "McCain-Feingold Law").  A finding that the movie is an “electioneering communication” would limit the programming that could be offered by broadcasters on political candidates and topics; it would also subject the movie’s producers to extensive disclosure obligations.

Technically, an “electioneering communication” is any paid broadcast, cable or satellite programming that: (a) “refers to a clearly identified” candidate for Federal office; and (b) is telecast within 60 days of the general election or 30 days of a primary; in the case of a presidential candidate, it must also be received by 50,000 or more people. (Some exemptions exist for news stories, editorials and the like, as long as the broadcaster is not controlled by a political party or candidate.)

The distinctly anti-Hillary documentary was produced by the not-for-profit organization "Citizens United", which claims it is "[d]edicated to restoring our government to citizen control".   "Hillary: The Movie" was released in January, 2008, in the thick of Senator Clinton's run for the Democratic presidential nomination. Citizens United released the movie in theaters and on DVD.  No problem there.

But Citizens United also wanted to offer the movie for pay-per-view purchase on cable systems nationwide, and it wanted to broadcast ads for the DVD and movie showings.  In order to avoid getting crosswise with BCRA, it first sought a declaratory ruling from the United States District Court for the District of Columbia that the film did not run afoul of McCain-Feingold, as that law was interpreted by the Supreme Court in McConnell v. Federal Election Commission (2003) and FEC v. Wisconsin Right to Life, Inc. (a 2007 decision previously discussed addressed in this blog),

The District Court ruled that the film was an electioneering communication as defined in BCRA because the only reasonable interpretation was that the film was intended as an appeal to vote against Clinton.  Accordingly, under BCRA, Citizens United would not be able to show the movie on broadcast or cable television.

And while ads for the movie (and DVD) would not themselves be “electioneering communications”, broadcast of the ads would subject Citizens United to considerable, detailed disclosure requirements (including disclosure of Citizens United donors) and the airing of a disclaimer containing the identity of those responsible for the content, as well as the name and address of the corporation (in this case a non-profit) that paid for the advertisement. 

By law, Citizens United was able to – and did – appeal directly to the United States Supreme Court. On November 14, 2008, the Supremes agreed to hear the case later this term.

While the overall outlines of BCRA’s “electioneering communications” rules have previously been upheld, the applicability of those outlines to particular cases remains an open question. In 2007 a sharply divided Supreme Court held that certain advocacy ads could not properly be held subject to those rules. Citizens United is presumably hoping for at least such a ruling in its case, if not a broader holding affording appropriate First Amendment protections to a greater range of announcements.

While this case does not directly address the rights and duties of broadcasters, those rights and duties are likely to be affected by whatever the Court does. The Court might narrow the definition of “electioneering communications”, thereby removing a disincentive for some potential advertisers. Or the Court might at least clarify precisely the line between communications which are “electioneering” and those which are not – thus providing all concerned with useful practical guidance.  Of course, if the Court sides with the government, broadcasters will continue having to vet every piece of politically-oriented programming – not just commercials – to determine whether it could trigger BCRA regulations.

This is a case rife with irony.  Another rival for the presidency – John McCain – co-authored the law which is effectively protecting Hillary Clinton's reputation. The current Administration, repeatedly and harshly criticized by Senator Clinton, will be defending the law (and, by extension, protecting her from attack). 

Citizens United's basic argument should be palatable to broadcasters:  regulation of this type of movie could lead to similar regulation of other media which also could influence elections, including books, magazines and even newspaper editorials or op-eds.  Its brief contends that the court must recognize a fundamental difference between an advertisement and a movie that merits different treatment under BCRA.

So, essentially, it appears that the court is being asked to decide whether content is king or the medium is the message...
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Palin, the First Amendment and the Media - Need for Concern?

Posted on November 1, 2008 by Kevin Goldberg

In September's "Memo to Clients", our readers were treated to an extensive analysis of the Presidential candidates’ positions on communications issues. Jeff Gee concluded that Senator McCain’s and Senator Obama’s views are - to the extent they have been stated - rather similar on matters affecting the broadcast and telecommunications industries (their opposing viewpoints on media ownership being the glaring exception).

We didn’t examine the views of the Vice Presidential candidates. After all, there really isn’t much information out there from which we might form any conclusions about the likely media policies of either Senator Biden or Governor Palin. Nevertheless, a recent statement made by Palin has caused us to ponder her overall agenda for the FCC and the communications industry. 

While being interviewed by Chris Plante on Washington, D.C. radio station WMAL, Palin made the following statement regarding media coverage of her strong statements about Obama’s past associations.

If [the media] convince enough voters that that is negative campaigning, for me to call Barack Obama out on his associations, then I don’t know what the future of our country would be in terms of First Amendment rights and our ability to ask questions without fear of attacks by the mainstream media.

Hold on; wait a minute. ‘First Amendment rights’? What’s she talking about? As just about any first-year law student understands - and many others as well (and here’s a shout out to the undergraduate students in Comm 475 - Journalism Law at George Mason University – you get no extra credit on the exams being graded this weekend even if you're reading this blog) - the First Amendment is directed against the Government, not the media.

(Quick refresher: The First Amendment provides in relevant part that “CONGRESS shall make no law . . . abridging the freedom of speech, or of the press” (emphasis added). While the First Amendment clearly applies to all government entities and not just Congress, private individuals or entities, including “the media”, still are not limited in any way by the First Amendment.)

So when Governor Palin suggests that her dust-ups with the media might somehow affect our “First Amendment rights” in the future, it’s worth taking a second look here. It’s probably too big a stretch to suggest that, as Vice President, Palin would seek to restrict the rights of freedom of speech and the press in any way. But it does make us wonder whether she might think it either necessary or appropriate to try to prevent, or at least discourage, similar “attacks” by the “mainstream media” in the future.

Short of a repeal of the First Amendment - and we obviously don’t think that that's even conceivable, much less practically likely - there are precious few ways in which the Federal government might attempt to soften the blows delivered by “the media”, particularly during political campaigns. Instituting further changes to the media ownership rules provides no obvious change. It would be virtually impossible to make the necessary amendments to the political broadcasting rules to consider “attacks” in the context of news or editorial broadcasting to be a use which triggers equal time. 

So perhaps the most obvious of those alternatives would be a resurrection of the Fairness Doctrine. But the Fairness Doctrine was mustered out of service more than 20 years ago, and it is hard to imagine why it should be returned to active duty now. Still, in light of Palin’s expressed concerns about the “future of our county . . . in terms of First Amendment rights”, we might all want to keep an eye on this should Palin wake up on November 5 to find herself in a position to influence Federal communications policy.

(We note that any effort by Republicans to bring the Fairness Doctrine back would seem ironic in view of the speculation by a number of conservative commentators that an Obama Administration, with the support of a Democratic-controlled Congress and FCC, might seek to re-impose the Fairness Doctrine, supposedly as an antidote against conservative talk radio.)
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