BROOKE GLADSTONE: Chances are you didn't catch the 2008 film called Hillary: The Movie.
MALE NARRATOR: So who is the real Hillary Clinton? Is she a brilliant trailblazer poised to make history as the first female president, or is she ruthless, cunning, dishonest, willing to do anything for power?
BROOKE GLADSTONE: It’s a documentary that portrays then-Senator and presidential aspirant Hillary Clinton as downright dangerous to the nation. It was funded by a conservative group called Citizens United and slated to air on cable pay-per-view channels in January of 2008, right when it could do the most harm to her campaign. But the Federal Election Commission ruled that the movie could not run, since its sole purpose was to convince people not to vote for Clinton. Essentially, it determined that it was a political ad, and the Supreme Court had ruled in 1990 that the government could limit corporate contributions to political ads. And that set a strong precedent for the 2002 McCain-Feingold campaign finance laws. But New York Times legal correspondent Adam Liptak says that Hillary: The Movie is poised to change all that. A lawsuit filed against the FCC by Citizens United, the group that funded the film, wound up in the Supreme Court in March. But instead of issuing a ruling, the justices called for what Liptak calls a “rare re-argument.”
ADAM LIPTAK: On the last day of the term they come back and say, you know what, we not only want to have the case re-argued on September 9th but we want the parties to address whether that 1990 precedent ought to be thrown out and whether we should rethink this whole area, which is why this quirky little movie, Hillary: The Movie, seems to be on the verge of giving rise to a real sea change in the way American politics are conducted.
BROOKE GLADSTONE: You've quoted First Amendment lawyer Floyd Abrams saying, “Criminalizing a movie about Hillary Clinton is a constitutional desecration.” But I just wonder -- could he be misrepresenting the issue here? I mean, anyone is allowed to make any film they want. The lower court’s decision is just about the fact that they aren't supposed to broadcast it over cable TV.
ADAM LIPTAK: It’s true that you can see this movie on the Internet. It’s true that you can buy a DVD. But it’s an interesting question about whether the government can decide that there are certain mediums that it’s free to regulate. The key moment at the first argument in the case in March came when a lawyer for the government, when asked, well, could the government also criminalize the sale of books, and the lawyer said yes. It was a hypothetical question. But really the principle is if you can regulate broadcast, satellite and cable transmission, why is it that you can't regulate books or the Internet or newspapers? Another thing the McCain-Feingold law does is say, okay, we're going to regulate political speech that’s broadcast, paid for [by] corporations during elections, but we're going to give an exemption to media corporations. And why is it that a corporation like Citizens United, which is really -- I mean, it’s engaged in political speech, which is once upon a time what people thought was the core of the First Amendment can be stopped from saying things and FOX News cannot?
BROOKE GLADSTONE: The ACLU tends to move on the side of free speech, so it’s pretty much against campaign finance regulation, which in this case makes it unusual bedfellows, actually, with the National Rifle Association. But you say that this case has polarized people even inside the ACLU.
ADAM LIPTAK: Yeah, not only inside the ACLU but on the left, in general. There are really two schools of thought. They are very hard to reconcile. On the one hand you have the traditional First Amendment, free speech, absolutist point of view that political speech is precisely what the First Amendment means to protect, and we shouldn't have the government saying who can say what about politicians. On the other side of the balance, also among a lot of liberal groups, probably the bulk of them, is the fear that unlimited corporate money flooding into the political marketplace will really distort it and do damage to democracy itself.
BROOKE GLADSTONE: Yes, you quote Fred Wertheimer, a veteran advocate of tighter campaign regulations, who says, “We're not dealing with campaign finance laws. We're dealing with the essence of power in America.”
ADAM LIPTAK: I guess one way to think about it, though, is just because corporations can put up ads doesn't mean necessarily that people will believe what they say. One view of the First Amendment is that having lots of ideas out there is to the good because people will choose among them. Another view is that if you say something enough times and in incendiary enough a fashion, people will buy it. So the issue turns a little bit on your view of human nature, as well.
BROOKE GLADSTONE: Back when the McCain-Feingold campaign finance laws were upheld, Sandra Day O’Connor was on the Court. She’s been replaced by Samuel Alito. Now we're hearing this rehearing of this case. Does that mean that the Court may move in another direction?
ADAM LIPTAK: The Roberts Court has a different attitude toward campaign finance laws than the Rehnquist Court did. The new Court has a five-justice majority that’s hostile to campaign finance laws. It would not have been hard to decide this case in favor of Hillary: The Movie on quite narrow grounds. You could have said movies are different from ads. You could have said that video-on-demand, which is how they were going to distribute this, which is something you have to seek out, is not the same as being assaulted by an ad while you’re trying to watch a TV program. There are lots of ways to get out of this case to rule in favor of Hillary: The Movie and not do anything major. The fact that they set it down for re-argument really suggests that they're taking a very serious look at undoing an understanding that’s probably a century old, that corporations are different and that their speech can be controlled.
BROOKE GLADSTONE: Adam, thank you very much.
ADAM LIPTAK: Good to be here, Brooke.
BROOKE GLADSTONE: Adam Liptak is a legal correspondent for The New York Times.