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…