The US Supreme Court takes up a closely watched case on Tuesday examining when a documentary film may violate election law and become an illegal form of campaign advocacy.
The case centers on a Federal Election Commission (FEC) decision last year to block pay-per-view broadcasts of a 90-minute film called "Hillary: The Movie," which presents a negative assessment of Hillary Rodham Clinton's record as a senator and first lady. The film was produced by Citizens United, a Washington-based conservative group.
The justices are being asked to decide whether the FEC's action was unconstitutional government censorship that violated the documentary producers' free speech rights.
The case is seen as significant because it presents the high court an opportunity to either uphold or cut back on the McCain-Feingold campaign finance law, which is aimed, in part, at preventing corporations and labor unions from flooding the public airwaves with last-minute political attack ads before elections.
The law doesn't apply just to traditional broadcast advertisements. It bars these groups from using their treasury funds to engage in a wider range of communicative efforts that the government believes might be aimed at influencing the outcome of a federal election.
The FEC is empowered by Congress to decide when a corporation or union crosses the line from acceptable public debate into illegal electioneering.
"Hillary: The Movie" was a prohibited form of electioneering subject to regulation under the campaign finance law, the FEC concluded. The law bars electioneering broadcasts by corporations or unions within 30 days of a primary or 60 days of a general election.
In addition, the FEC ruled that if Citizens United wanted to run broadcast advertisements promoting the documentary, it must first disclose the financial backers of the film.
The FEC said the disclosure rule applied even though the content of the ads did not amount to a form of electioneering.
Citizens United filed suit, arguing before a three-judge panel that the McCain-Feingold law was unconstitutional in the way it was being enforced by the FEC against its film.
The panel disagreed. It sided with the FEC, ruling that the documentary was the functional equivalent of electioneering and that Citizens United must disclose the documentary's financial supporters if it wanted to run broadcast ads during election season.
In their appeal to the Supreme Court, lawyers for Citizens United argue that the film is not the functional equivalent of electioneering
"The government's position is so far-reaching that it would logically extend to corporate or union use of a microphone, printing press, or the Internet to express opinions – or articulate facts – pertinent to a presidential candidate's fitness for office," he says.
Government lawyers counter that "Hillary: The Movie" is an extended political attack. "[The film's] unmistakable message is that Senator Clinton's character, beliefs, qualifications, and personal history make her unsuited to the office of the President of the United States," writes Edwin Kneedler of the solicitor general's office, in a brief filed on behalf of the FEC.
The government is also asking the high court to uphold FEC disclosure requirements triggered by promotional ads. Mr. Olson is asking the court to strike down the requirements.
He says the ads are aimed at generating interest in a documentary film, rather than trying to persuade voters to support or oppose a candidate.
Some financial backers may withhold support for a controversial project if they know their support will be publicly disclosed. Olson says that makes it more difficult for groups like Citizens United to produce films critical of powerful public figures.
Government lawyers present another perspective. "Disclosures of the sort here serve rather than undermine First Amendment interests by increasing the amount of information available to the public," Mr. Kneedler writes in the FEC's brief.
Some free-press advocates are sounding alarm bells about the case. "By criminalizing the distribution of long-form documentary film as if it were 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," writes Lucy Dalglish of the Reporters Committee for Freedom of the Press in a friend of the court brief.
Members of the news media are generally exempt from the McCain-Feingold restrictions. But Ms. Dalglish says the news media are in the midst of a massive overhaul that might complicate future FEC enforcement efforts.
"The technology journalists use to disseminate their content is rapidly changing, and there is an accompanying resurgence in independent content – blogs, documentaries, nonprofit journalism, and niche publications," she says.
Scott Nelson, a lawyer with the Public Citizen Litigation Group, a strong supporter of the McCain-Feingold law, disagrees. "The idea that it threatens legitimate journalism and people who are out creating documentaries, I think, is a stretch," he says.