High points and low notes from the arguments about ‘Hillary: The Movie’

I know most of you don’t have time to read a 68-page court transcript and noodle the intricacies McCain-Feingold, the so-called campaign finance reform law that so blatantly violates the First Amendment, and figure out whether it applies to this group or that entity and whether is covers a 30-second commercial but not a 90-minute movie or even a book.

So consider this the Cliff Notes version of Tuesday’s U.S. Supreme Court arguments in the case of Citizens United v. Federal Election Commission. This the case in which the government forbade promotion of a movie called “Hillary: The Movie” during the Democratic president primaries, because it was a hit-piece on Hillary Clinton.

You see McCain-Feingold limits spending by corporations and unions prior to an election.

Here are some interesting quotes from the transcript:

THEODORE B. OLSON, arguing for the makers of the movie: What the -- what the Court said in Wisconsin Right to Life was that the distinction between an issue -- issue advocacy and campaign advocacy dissolves upon practical application. This is exactly what the Court was talking about there.

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OLSON: The government has the burden to prove -- and there's a compelling governmental interest narrowly tailored, Justice (Stephen) Breyer, because all kinds of things of the type that you're talking about are permissible if your name is General Motors -- I, mean if your name is General Electric rather than General Motors, if your name is Disney, if your name is George Soros, if your name is National Public Radio. What you're suggesting is that a long discussion of facts, record, history, interviews, documentation, and that sort of thing, if it's all negative, it can be prohibited by -- and it's a felony. You can go to jail for 5 years for sharing that information with the American public, or if it's all favorable, you can go to jail. But if you did half and half, you couldn't.
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OLSON: And I counted 22 separate opinions from the Justices of this Court attempting to -- in just the last 6 years, attempting to figure out what this statute means, how it can be interpreted.
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JUSTICE DAVID SOUTER: You say that. Why -what -- what is your basis for saying that Congress is -- is less concerned with 90 minutes of don't vote for Clinton than it was with 60 seconds of don't vote?
OLSON: Because -- because the record in Congress and the record in this Court is that those types of advertisements were more effective because they came into your home –
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OLSON: The point that you just made about a nonporous border, it is the government's responsibility to the extent that you can't figure out how evenhanded you must be or what you must take out of your communication in order not to go to jail for airing it, it is the functional equivalent -- if everything is the functional equivalent that mentions a candidate during an election, which is what the government says, it's the functional equivalent of a prior restraint, because you don't dare –
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JUSTICE SAMUEL ALITO: I'm not asking what the statute says. The government's position is that the First Amendment allows the banning of a book if it's published by a corporation?
MALCOLM L. STEWART, arguing for the Justice Department: Because the First Amendment refers both to freedom of speech and of the press, there would be a potential argument that media corporations, the institutional press, would have a greater First Amendment right. That question is obviously not presented here.
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CHIEF JUSTICE JOHN ROBERTS: It's a 500-page book, and at the end it says, and so vote for X, the government could ban that?
MR. STEWART: Well, if it says vote for X, it would be express advocacy and it would be covered by the pre-existing Federal Election Campaign Act provision.
MR. STEWART: Yes, our position would be that the corporation could be required to use PAC funds rather than general treasury funds.
CHIEF JUSTICE ROBERTS: And if they didn't, you could ban it?
MR. STEWART: If they didn't, we could prohibit the publication of the book using the corporate treasury funds.
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JUSTICE ANTONIN SCALIA: Well, I don't see any reason why it wouldn't. I'm saying there's no basis in the text of the Constitution for exempting press in the sense of, what, the Fifth Estate? (I think he meant the Fourth Estate.)
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MR. STEWART: In -- in any event, the only question this Court would potentially need to decide in this case is whether the exemption for media companies creates a disuniformity that itself renders the statute unconstitutional, and the Court has already addressed that question in McConnell. The claim was made that because media corporations were exempt, there was inequality of treatment as between those and other corporations. And Congress said no, Congress -- I mean, this Court said no, Congress can protect the interests of the media and of the public in receiving information by drawing that line. With respect to your –
JUSTICE SOUTER: To point out how far your argument would go, what if a labor union paid and offered to write a book advocating the election of A or the defeat of B? And after the manuscript was prepared, they then went to a commercial publisher, and they go to Random House. Random House said, yes, we will publish that. Can the distribution of that be in effect subject to the electioneering ban because of the initial labor union investment?
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JUSTICE SCALIA: Mr. Stewart, do you think that there's a possibility that the First Amendment interest is greater when what the government is trying to stifle is not just a speaker who wants to say something but also a hearer who wants to hear what the speaker has to say? I mean what is somewhat different about this case is that unlike over-the-air television you have a situation where you only get this -- this message would only air -- if somebody elects to hear it. So you really have two interested people, the speaker and the listener who wants to -- who wants to get this. Isn't that a somewhat heightened First Amendment interest than just over-the-air broadcasting of advertising which probably most listeners don't want to hear?