Another Supreme Court Test Of First Amendment Rights

By James Donahue

In 2007 as the latest presidential campaign was already building steam, an organization headed by former Clinton advisory David N. Bossie produced what was described as a documentary titled “Hillary, The Movie,” which portrayed Senator Hillary Clinton as unfit to hold political office.

Bossie’s organization, Citizens United Productions, drew from such extreme right-wing characters as Dick Morris, Ann Coulter, Newt Gingrich and Dick Armey to portray Senator Clinton and her husband, former President Bill Clinton, as heavily involved in scandal. Morris, a former advisor to President Clinton, appears in the film and describes Mrs. Clinton as “the closest thing we have in America to a European socialist.”

The film was released to theaters in six major U.S. cities and on DVD early in 2008 when it was obvious that Senator Clinton was emerging as a leading contender for the Democratic Party nomination for the presidency.

When the organization sought to distribute the film by paying $1.2 million to sell it through video-on-demand, the Federal Election Commission intervened. The commission decided the film was a bias smear campaign subject to the rules of the McCain-Feingold Act of 2000, designed to limit the influence of big money on elections.

Under the rules of McCain-Feingold, the film could not be financed by big corporations or broadcast within 30 days of a primary or 60 days of a general election. The Commission ordered the disclosure of the donors that financed the film, but Citizens United refused. The organization took the case to the U.S. District Court in Washington instead.

Citizens United sought an injunction that would permit their organization to run television ads promoting the movie without complying with McCain-Feingold rules.

It was clear that the organization wanted to conduct its smear campaign against Mrs. Clinton without having to expose the fact that the film was financed by certain business interests interested in keeping the Republicans in the top executive post for another four years. Many thought at the time that Hillary Clinton would be the winning Democratic Party candidate.

The obvious plan was for advertisements promoting the negative documentary to start appearing in primary states just days before voters went to the polls in 2008.

The plan was snafued when the U.S. District Court ruled that the documentary was a political ad and that Citizens United was prohibited to broadcast either the move or advertise for the film without first disclosing the names of its donors.

The appellate court upheld the District Court decision and the case now has made its way to the U.S. Supreme Court, which will be deciding whether to hear it when it sets its docket on January 8.

Lawyers for Citizens United argue that McCain-Feingold violates the First Amendment rights to free speech. The lower courts however held that the film was the functional equivalent of express advocacy because it attempted to persuade voters that Hillary Clinton was unfit for office. The court also ruled that the rule requiring disclosure of donors “might be unconstitutional if it imposed an unconstitutional burden on the freedom to associate in support of a particular cause.” The judges found that such circumstances do not exist in the Citizen United claim.

The issue here is not a question of the accuracy of the material that appears in the Bossie documentary, but rather the timing of the release of the film in the weeks and months prior to the 2008 elections, and the refusal by Citizens United to reveal the source of the money that financed the film.

Many writers have expressed a fear of what might happen to the American election process if the high court agrees to hear this case and reverses the lower court rulings. Such a decision would open the door for secretly financed smears against candidates in the form of art and free expression without any boundaries.

America has enough trouble policing its national elections without adding muck of that level to the mix.