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Court Weighs Anti-Clinton Movie

ROBERT SIEGEL, host:

From NPR News this is ALL THINGS CONSIDERED. I'm Robert Siegel.

In the Supreme Court today, a debate about the movies, sort of. Producers of a withering 90 minute movie critique of Hillary Clinton argued that part of the McCain-Feingold Campaign Finance Law is unconstitutional. A conservative group produced the film and wanted to air it on cable during the presidential primary season. But the Federal Election Commission and the Lower Federal Court said no, because the producers didn't comply with election laws.

NPR's legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG: Hillary: The Movie is not subtle.

(Soundbite of Hillary: The Movie)

Unidentified Man #1: She's no Richard Nixon. She's worse.

Unidentified Man #2: Vindictive.

Unidentified Woman: Venal. Sneaky.

Unidentified Man #2: Intolerant.

Unidentified Man #3: Scares the hell out of me.

TOTENBERG: A three-judge federal court ruled the film is subject to only one interpretation: to inform the electorate that Senator Clinton is unfit for office, thus the movie is covered by a variety of provisions in the McCain-Feingold law. No corporate or union funds can be used and the funders must be publicly disclosed.

Because Citizens United, the conservative group that produced the movie, failed on both counts, and because the U.S. Supreme Court has previously upheld these provisions as constitutional, the producers could not buy time on cable TV to show the film 30 days before a presidential primary.

The composition of the Supreme Court today, however, is far different than it was six years ago when the justices upheld the constitutionality of McCain-Feingold. Two new Bush appointees now sit on the court, and today those appointees along with other justices seemed decidedly hostile to the statute.

Chief Justice Roberts suggested that the Supreme Court did not previously consider the question of long-form attack ads. Justice Alito asked what the difference is between providing this movie via on-demand cable service and providing it on the Internet or in a book?

Deputy Solicitor General Malcolm Stewart replied that Congress could have applied the same restrictions to other media, as well, but the law provided exemptions for the print media and the Internet.

Justice Alito, leaning forward: That's pretty incredible. You think that if a campaign biography were published it could be banned?

Answer: I'm not saying it could be banned. I'm saying Congress could ban the use of corporate funds to publish it.

Well, what about a Kindle, asked Justice Kennedy.

Or a printed sign, asked Chief Justice Roberts.

Justice Breyer tried to rescue the situation: Of course, the government can't ban expression of political views. The question is how you pay for it.

For decades, federal campaign laws have banned corporations and unions from funding campaign ads. But today the justices seemed to flirt with the idea of striking down that provision, at least for long-form ads, like this one on radio or TV.

Lawyer Stewart turned next to the question of disclosing the identity of funders. The law requires full disclosure, he said. Except if the funders can show a legitimate fear of reprisal.

Chief Justice Roberts: But then the horse would already be out of the barn. You can only prove you're reasonably the subject of reprisals once you've been the victim of reprisals.

Arguing the other side of the case on behalf of the anti-Hillary group today was lawyer Ted Olson. He told the justices that the group's First Amendment right to express itself is being smothered by, quote, "One of the most complicated, expensive, and incomprehensible regulatory regimes ever invented by the administrative state."

Justice Souter: If this documentary were produced by General Motors, would your argument be the same?

Olson said, No it would not.

Justice Souter: Then how would we draw the line between this and corporate political activity banned under the law? Why couldn't your group have produced and aired the same film using funds from a political action committee?

Justice Breyer: This movie is not a musical comedy, after all.

Answer: Setting up a political action committee and reporting contributions would be burdensome for a small organization like this. Long-form ads, said lawyer Olson, are different from short 30-second ads. A 90-minute version is protected political expression and cannot be regulated.

Justice Kennedy: If a short 30-second or one-minute ad can be regulated, you want me to write an opinion that says, well, if it's 90 minutes then that's different? It seems to me 90 minutes is a lot more powerful.

In short, Kennedy seemed to be suggesting: either it's all constitutional or all unconstitutional.

Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.