Published March 21, 2009
Months after its debut, "Hillary: The Movie" faces nine of the nation's toughest critics: the Supreme Court.
The justices' review of the slashing documentary financed by longtime critics of Secretary of State Hillary Clinton could bring more than just a thumbs up or thumbs down. It may settle the question of whether the government can regulate a politically charged film as a campaign ad.
David Bossie, a former Republican congressional aide who produced the Clinton movie and another describing then-Sen. Barack Obama as an overhyped media darling, said his films are about important moments in American politics.
"The outcome of this case will dictate how we're able to make films and educate people about them," he said.
At issue in the case being argued before justices Tuesday is the 90-minute anti-Clinton movie and television ads Bossie wanted to air during the 2008 primaries advertising the film.
Bossie's group, the conservative Citizens United, released the movie as Clinton, then a New York senator, was competing with Obama for the Democratic presidential nomination.
The movie is unquestionably anti-Clinton, featuring commentary from conservative pundits, some of whom specifically say Clinton was not fit to be commander in chief.
One scene, which was used in an ad, has Dick Morris, a former adviser to President Bill Clinton who is now a critic of the Clintons, saying the senator is "the closest thing we have in America to a European socialist."
The movie was shown in eight theaters. Bossie's group wanted run ads on television in key election states during peak primary season and show the movie on cable television's video-on-demand.
Federal courts said the ads would violate the McCain-Feingold law, the popular name for 2002 revisions to the nation's campaign finance laws. Judges called "Hillary: The Movie" a 90-minute attack ad, rulings that would require Citizens United to identify the financial backers for the ads if they were to appear on television.
The court also said that if Bossie's group showed the movie on cable television, financial backers would have to be named and the group would have to pay the cost of airing the movie.
Citizens United appealed to the Supreme Court, arguing that "Hillary: The Movie" should not be considered a political ad. The group says there is nothing in the movie urging people to vote against Clinton. The group says the film is more of a documentary comparable to critical television news programs such as "Frontline," "Nova" and "60 Minutes."
"The fact that 'Hillary' presents a critical assessment of Sen. Clinton's political background, character, and fitness for office does not convert the movie ... into an appeal to vote against Sen. Clinton," said Theodore Olson, Citizens United's lawyer.
"Indeed, a critical exposition of the political background and policy views of a former first lady and sitting U.S. senator is precisely the type of uninhibited, robust, and wide open debate and discussion that the First Amendment protects and encourages," Olson argues.
A panel of federal judges disagreed, calling "Hillary" nothing but an extended-length political attack ad. The Justice Department agreed, saying "'Hillary' is a 90-minute advocacy piece whose unmistakable meaning is that Hillary Clinton should not be elected president.
Some question whether that declaration strays too close to regulation of journalists, who generally have been exempt from campaign finance rules.
Without passing judgment on the content of "Hillary," the Reporters Committee for Freedom of the Press filed a brief supporting Citizens United, telling the Supreme Court that the media has been critical of presidential candidates since George Washington.
"By criminalizing the distribution of a long-form documentary film, as if it was nothing more than a very long advertisement, the district court has created uncertainty about where the line between traditional news commentary and felonious advocacy lies," the group said.
If the decision is upheld, "I can certainly see journalists running afoul of this law in the future," lawyer Lucy Dalglish said.
This isn't the first time documentary filmmakers have been questioned in relation to campaign finance laws. Citizens United in 2004 sought to keep filmmaker Michael Moore from advertising "Fahrenheit 9/11" -- which was critical of President George W. Bush -- in the run-up to the presidential election.
The Federal Election Commission, charged with enforcing the McCain-Feingold law, dismissed the complaint after Moore said he had no plans to run the ads during election season.
Bossie said Moore's success is what inspired him. "Michael Moore forced me to recognize the power of documentary film," said Bossie, who was involved in the House's investigation of Bill Clinton that led to the president's impeachment and trial.
So regardless of what the Supreme Court decides, expect to see more politically charged movies from Citizens United.
Soon after Obama secured the nomination, Bossie's organization came out with "Obama: The Hype Effect" and ran into the same legal problems with the Federal Election Commission. That didn't stop the group from having free DVDs inserted into The Columbus Dispatch, The Cincinnati Enquirer, The (Cleveland) Plain Dealer, The Palm Beach (Fla.) Post and the Las Vegas Review-Journal.
Bossie expects to produce at least 15 movies at his Washington-area studio by the next presidential election in 2012. Among them, he says, will be "Stimulate This," an indictment of the recently enacted economic stimulus package.
The case is Citizens United v. FEC, 08-205.