Video: Supreme Court weighs ‘Hillary: The Movie’

By Pete Williams Justice correspondent
NBC News
updated 3/24/2009 4:32:21 PM ET 2009-03-24T20:32:21

After an unusually spirited discussion concerning freedom of speech at election time — one that even raised the prospect of banning books —the U.S. Supreme Court seemed prepared Tuesday to rule in favor of the conservative backers of an anti-Hillary Clinton movie, possibly by creating an exception to the laws governing campaign ads.

"Hillary: The Movie" is a harshly critical 90-minute feature about the former Democratic presidential candidate.

Her opponents wanted to make it available as an on-demand cable television offering in the midst of primary season. But the Federal Election Commission blocked it, deeming the movie nothing more than a glorified attack ad, improperly paid for, in part, by corporate contributions.

Even though contributions to the film came from a small non-profit organization, the government said it ran afoul of the McCain-Feingold law, which intended to keep corporate money out of politics.

Citizens United, the group behind the movie, urged the justices to overturn lower court rulings upholding the ban.

"This documentary is the very definition of robust, uninhibited debate about a subject of intense political interest that the First Amendment is there to guarantee," argued Ted Olson, the Washington attorney representing the filmmakers.

A majority of the justices appeared to agree, though initially many on the court scoffed at Olson's claim that the movie was nothing more than a biographical documentary, meant simply to be informative.

Justice David Souter quoted several lines from the film: "'She will lie about anything. She is deceitful. She is ruthless, cunning, dishonest. Will do anything for power. Will speak dishonestly.... Reckless, a congenital liar. Not qualified as commander in chief.'"

"I mean, this sounds to me like campaign advocacy," he added.

Even so, a majority of the court seemed ready to put the movie in a different category from 30- and 60-second radio and television electioneering ads — spots paid for with corporate funds and banned by Congress for air in the weeks before primary and general elections.

Image: David Bossie
Evan Vucci  /  AP
David Bossie, leader of Citizens United and producer of "Hillary: The Movie," is shown in his Washington office.
Several justices suggested that because "Hillary: The Movie" was to be an on-demand selection, people who wanted to see it would have to seek it out — differentiating it from those short attack ads that wash over captive audiences.

"Here you have a medium in which somebody listens only if that person wants to listen. So the person speaking wants to speak, and the person hearing wants to hear. It seems to me that's a stronger First Amendment interest," said Justice Antonin Scalia.

If the federal government can treat a movie like a political advertisement, then why not books, the justices asked.

It can, answered Stewart, "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.  

Stewart said that because the law bars electioneering messages funded in any part by corporations or unions, the government could even prevent a labor group from paying an author to write a book advocating a candidate's election that would be published by Random House.

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"Even if there's one clause in one sentence in the 600-page book that says, 'In light of the history of the labor movement, you should be careful about candidates like John Doe who aren't committed to it'?" asked Chief Justice John Roberts.

"I'm a little disoriented here, Mr. Stewart," interjected Justice Scalia. "We are dealing with a constitutional provision, are we not? The one that I remember which says Congress shall make no law abridging the freedom of the press?"

What about a ban on electronic books, like those used on Amazon's Kindle reader, Kennedy asked. Yes, Stewart said.

What if Wal-Mart wanted to run ads touting an action figure of a political candidate, Chief Justice Roberts asked. Could that be regulated? "If it aired at the right time, it would," Stewart said.

The movie was advertised on the Internet, sold on DVD and shown in a few theaters. Campaign regulations do not apply to DVDs, theaters or the Internet.

The court's ruling is expected by late June.

The Associated Press contributed to this report.

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