Felonious Advocacy

Thanks to campaign finance reform, activists can go to jail if their movie makes a politician look bad.

"I'm a little disoriented here," Justice Antonin Scalia said during last week's oral arguments in a case involving legal restrictions on movies that criticize politicians. "We are dealing with a constitutional provision, are we not, the one that I remember, which says Congress shall make no law abridging the freedom of the press?"

Scalia's discombobulation was understandable, given that Deputy Solicitor General Malcolm Stewart had just claimed the First Amendment does not bar the government from telling interest groups what videos they may post online or what books they may publish. Such are the lengths to which Congress will be driven if it persists in its vain crusade to prevent "the appearance of corruption" by policing political speech.

The immediate issue before the Supreme Court is a 90-minute documentary, Hillary: The Movie, produced by the conservative group Citizens United, which wanted to make it available last year through video-on-demand cable channels. The cost of doing so, in addition to $1.2 million for cable system access, was a penalty of up to five years in prison.

According to the Federal Election Commission (FEC), the documentary qualified as an illegal "electioneering communication" under the Bipartisan Campaign Reform Act of 2002. That law prohibits corporations, including nonprofits like Citizens United, from sponsoring "any broadcast, cable, or satellite communication" that mentions a candidate for federal office within 30 days of a primary or 60 days of a general election.

In a 2007 case brought by Wisconsin Right to Life, the Supreme Court narrowed the definition of "electioneering communication" to cover only "express advocacy or its functional equivalent"—i.e., a message "susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." The FEC decided Citizens United's documentary was so critical of Hillary Clinton, at the time a senator running for the Democratic presidential nomination, that it could not reasonably be seen as anything other than an attempt to prevent her election.

The implication is that a more evenhanded documentary, one that had some nice things to say about Clinton, would have been legal. Show a movie that tells a politician's story in a neutral way (as judged by the FEC's censors), and you're OK. Show a movie that makes the politician look bad, and you can go to prison. What was that constitutional provision Scalia mentioned?

Members of Congress evidently had at least a vague memory of it when they passed BCRA, because the law includes an exemption for "a communication appearing in a news story, commentary, or editorial distributed through the facilities of any broadcasting station." This provision perpetuates the dangerously misguided notion that certain citizens—in this case, those who work for a TV or radio station—have a special claim to freedom of speech.

But the First Amendment belongs to all of us; there is no constitutional basis for distinguishing between a documentary produced by Citizens United and a documentary produced by CBS News. As the Reporters Committee for Freedom of Speech notes in a friend-of-the- court brief, "suppressing a documentary that is objectively indistinguishable from other news media commentary" creates "uncertainty about where the line between traditional news commentary and felonious advocacy lies."

Deputy Solicitor General Stewart declined to say the First Amendment requires Congress to draw such a line. He said "the difficult constitutional question" of whether the government may regulate the content of journalism produced by media companies such as Random House, the News Corporation, or the New York Times Company "has never had to be addressed."

Stewart was less shy about defending the constitutionality of extending the ban on "electioneering communications" to print and the Internet, logical steps if Congress is serious about suppressing messages aimed at changing people's votes. Indeed, given the convergence between the Internet and other methods of transmitting words and pictures into people's homes, BCRA's focus on "broadcast, cable, or satellite communication" will soon seem as quaint as the First Amendment.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist.

© Copyright 2009 by Creators Syndicate Inc.

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  • ||

    Why do Democrats hate freedome of speech?

  • What||

    April fool's?

  • Taktix®||

    April fool's?

    Sadly, no it isn't.

  • Xeones||

    Fuck!

  • TofuSushi||

    The retirement of TofuSushi

    All, it has been fun creating and developing the personality for this handle. You know the saying, if x did not exist it would need to be invented? TofuSushi sort of morphed into that when the Obamadroids departed the board. I was about to stop using the handle until that happened a few months ago.

    Those of you who noticed the irony of the comments "got it". Those of you who noticed my running out of material "got it" too. Only someone who truly believes all of that nonsense can keep a line like that going. For proof, just look at The Nation or TNR.

    Now, I let TofuSushi slip into the ocean of public domain, never again to complain
    of others spoofing the handle.

    Would be nice if TofuSushi would be the tag for irony or just general Leftist jabber that we all hear every day. Should not be hard with all of the TofuSushi impersonators on the board now. Some of you do an excellent job!

    Note: those of you who know who I am in real, please respect the deal we made about not revealing who I really am. I might come forward some day, but that day shall not be today.

    Reminder: Don't forget to turn off your computers while NIST cleans the internet today. You will get an e-mail telling you when it is safe to turn your computer back on.

  • ||

    Hey TofuSushi,

    You're not that important. Get over yourself.

  • ||

    Tofu,

    Thanks for the laughs :)

  • Taktix®||

    Bullshit, Tofu.

    You're not going anywhere. April Fools, har har...

  • Lester Hunt||

    And the ACLU is on the case, right?

  • ||

    In light of TofuSushi's admission, I guess it would be a good time to admit that I am merely a homunculus created by Episiarch through excessive masturbation.

  • NolongerTofuSushi||

    And the ACLU is on the case, right?

    Probably. They get all pissy about anybody picking on the Leftoids.

  • soFutuShi||

    And the ACLU is on the case, right?

    Civil liberties are only breached by neo-cons, AKA JOOZ.

    How can JOOZ be the victim? Listen to yourself, woman.

  • ||

    Jonah Goldberg over at the NY Post has a hypocritical commentary about the case:

    http://www.nypost.com/seven/04012009/postopinion/opedcolumnists/a_govt_book_ban_162244.htm

    Sorry, I don't know how to html tag links.

  • ||

    excessive masturbation

    Myth.

  • Ironius||

    Wow, Gov't is so intrusive that these film-makers weren't legally allowed to show the film during a campaign. McCain really could have used this fact to convince people why they should vote for him.

  • ||

    Maybe for girls, HoneyBunny. But when you've been at it for a awhile and that last ejaculation is like the dry gasp of a mummy's tomb opening, it's time to stop.

  • Ironius||

    They couldn't show the film "within 30 days of a primary?"

    Wasn't there a primary every 30 days for almost a year straight?

  • Taktix®||

    Ladies and Gentlemen, let's play a game. Anyone who can name any Constitutional rights we still have wins a new car...

  • Xeones||

    That's weird, SugarFree, since Episiarch is a homunculus I created through excessive masturbation.

  • Xeones||

    Anyone who can name any Constitutional rights we still have wins a new car...

    It's not GM, is it? Because, as a taxpaying fool, i already own part of the company.

  • ||

    Now SugarFree, quitters never win! Walk it off!

  • NolongerTofuSushi||

    Ladies and Gentlemen, let's play a game. Anyone who can name any Constitutional rights we still have wins a new car...

    As long as it is not a hybrid. I must see verification that it is not a hybrid before wasting any brain cycles on this one.

  • ||

    X,

    It's homonculi all the way down, until you reach The First Ejaculator. The Prime Masturbator.

  • ||

    In light of TofuSushi's admission, I guess it would be a good time to admit that I am merely a homunculus created by Episiarch through excessive masturbation.

    H-how d-do you use a keyboard?


    -Oh, I get it...a joke! April Fool's on me!

  • ||

    Taktix®,

    The 3rd! The 3rd! I still haven't heard of any soldiers quartered in private houses.

  • OO===D||

    "Note: those of you who know who I am in real, please respect the deal we made about not revealing who I really am. I might come forward some day, but that day shall not be today."

    Put me in your ass, bitch. Then suck me dry.

    Worthless piece of kitten shit.

  • ||

    But when you've been at it for a awhile and that last ejaculation is like the dry gasp of a mummy's tomb opening, it's time to stop.

    Just ask Dick Hertz.

  • OO===D||

    "That's weird, SugarFree, since Episiarch is a homunculus I created through excessive masturbation."

    And it is I who fathered you all.

  • ||

    Ladies and Gentlemen, let's play a game. Anyone who can name any Constitutional rights we still have wins a new car...

    ummm... we have the right to... umm... to um.... pay taxes, no that doesn't sound right... the right to support ACORN, regardless if we want to or not... thats not one either... Oh I know, the right to cut down people who don't agree with the supreme commander obama!

  • ||

    Your balls are serial (00===D), not parallel (8===D). You are the father of nothing but lies.

  • ||

    I'll, uh, be right back. And I'll be more relaxed and confident.

  • ||

    @ SugarFree

    ANGELA MERKEL MAKING OUT WITH HILLARY, THEN RE-ENACTING 2GILRS1CUP!!!

    Now I dare you to try...

  • ||

    Yeah, probably the 3rd, but just because they haven't quartered any soldiers doesn't mean they won't if they feel the need. Afterall, a Russian economist predicted revolution in this country within 2 years and I feel it creeping up on us. Don't think for a second, Obama won't suspend the Constitution. "Lincoln did it, so it must be legal!"

  • ||

    Now I dare you to try...

    Think of the lasting damage that, er, successfully abusing oneself to this image could cause.

  • OO===D||

    "Your balls are serial (00===D), not parallel (8===D). "

    Due to an accident involving a mechanical rice-picker. Do you always berate the disfugured?

  • NolongerTofuSushi||

    The 3rd! The 3rd! I still haven't heard of any soldiers quartered in private houses.

    SF took my guess, but the glairing ommission that the car cannot be a hybrid makes m suspect that he got screwed anyway.

  • Taktix®||

    The 3rd! The 3rd! I still haven't heard of any soldiers quartered in private houses.

    Dammit, SugarFree!

    *reaches into pocket for keys*

  • NolongerTofuSushi||

    *reaches into pocket for keys*

    hehehe, and just what do those keys "start"?

  • Taktix®||

    Afterall, a Russian economist predicted revolution in this country within 2 years and I feel it creeping up on us.

    I used to welcome this, but after futher thought, I realized that most instances of violent revolution follow a certain pattern:

    1) Freedom-loving people start it
    2) Authoritarian factions in the movement take control
    3) The new boss, same as the old boss (or worse)

    We got lucky with Washington, not many people on Earth would turn down the offer of Dictator for Life...

  • ||

    I guess it would be a good time to admit that I am merely a homunculus created by Episiarch through excessive masturbation.

    What's this about "excessive" masturbation?

    the Obama administration argues that the Constitution allows the government to censor books and Web content as well

    Are we done yet with "But Obama will be better on civil liberties"? Because as far as I can tell, that was the only fig leaf left to the Obamatarians.

    So now its up to the SCOTUS that put the stamp of approval on McCain-Feingold to save us. Great.

  • ||

    It would almost be worth it, if we could see 535 Congressional heads piled on the Mall.

  • NolongerTofuSushi||

    Taktix®,

    Glad you said most. I don't think Iran, 'palestine' or several others fit the pattern, but you have found a frequent pattern.

    You forgot steps 4 & 5 (??? and Profit!)

  • Flip||

    "It would almost be worth it, if we could see 535 Congressional heads piled on the Mall."

    Make that 534, because my congressperson is great at bringing jobs and money to our district.

  • fyodor||

    Just to advocate ol' Mr. Satan, would it be so tough to avoid the time restriction, i.e., 30 days before the primary, 60 before the election?

  • ||

    Psst, Flip. That's my money. Head in the pile as planned.

  • Taktix®||

    I don't think Iran, 'palestine' or several others fit the pattern, but you have found a frequent pattern.

    Not sure about the palestinians, but from my understanding, the Iranians revoled against the Shaw, and the fundamentalists took over mid-revolt and established their theocracy...

  • Taktix®||

    that's revolted...

    Damn carpal tunnel...

  • NolongerTofuSushi||

    Taktix®

    And Shah.

    But I really don't think those "students" were cut from any different cloth than the "fundamentalists".

  • Neu Mejican||

    activists can go to prison for distributing a documentary that makes a politician look bad

    I don't think the "civil penalties" in this law include prison.

    Am I wrong on that?

  • ||

    In light of TofuSushi's admission, I guess it would be a good time to admit that I am merely a homunculus created by Episiarch through excessive masturbation.

    SugarFree,

    Homunculus? "Little man?" How about simiolus, Latin for "little ape"? No offense to Episiarch, of course, I just wanted an excuse to use my latest Word of the Day.

  • ||

    PL,

    How about simiolus, Latin for "little ape"?

    MY GRANDFATHER WAS NOT A MONKEY!

  • ||

    SugarFree,

    Naturally not! He was a simiolus. I would never, never call your grandfather a monkey.

    I wonder if the guy who said that was speaking literally?

  • ||

    That is a good word of the day. Also, just in case someone doesn't know the history of the homunculus.

    There are also variants cited by other alchemists. One such variant involved the use of the mandrake. Popular belief held that this plant grew where semen ejaculated by hanged men (during the last convulsive spasms before death) fell to the ground, and its roots vaguely resemble a human form to varying degrees. The root was to be picked before dawn on a Friday morning by a black dog, then washed and "fed" with milk and honey and, in some prescriptions, blood, whereupon it would fully develop into a miniature human which would guard and protect its owner. Yet a third method, cited by Dr. David Christianus at the University of Giessen during the 18th century, was to take an egg laid by a black hen, poke a tiny hole through the shell, replace a bean-sized portion of the white with human semen, seal the opening with virgin parchment, and bury the egg in dung on the first day of the March lunar cycle. A miniature humanoid would emerge from the egg after thirty days, which would help and protect its creator in return for a steady diet of lavender seeds and earthworms.



    Go, my Army of spooged-in-eggs and milk-fed-roots! Destroy mine enemies!

  • NolongerFlappytheEagle||

    @NolongerTofuSushi

    If you have finally figured out that this is where grown ups post and you'd like to participate, then great. But maybe you could do so with a new handle -- one that doesn't incorporate TofuSushi, as it is tainted with a good deal of residual stink.

  • Reinmoose||

    In light of TofuSushi's admission, I guess it would be a good time to admit that I am merely a homunculus created by Episiarch through excessive masturbation.

    I'm actually a liberal who posts as a libertarian troll. Figures you libertards wouldn't get the joke.

  • NolongerTheLoneWacko||

    "If you have finally figured out that this is where grown ups post and you'd like to participate, then great. But maybe you could do so with a new handle -- one that doesn't incorporate TofuSushi, as it is tainted with a good deal of residual stink."

    Makes sense.

  • ||

    Latin makes everything seem more plausible.

  • ||

    Autofellatio, for example.

  • NolongerTofuSushi||

    @NolongerFlappytheEagle | April 1, 2009, 11:05am | #

    @NolongerTofuSushi

    If you have finally figured out that this is where grown ups post and you'd like to participate, then great. But maybe you could do so with a new handle -- one that doesn't incorporate TofuSushi, as it is tainted with a good deal of residual stink.


    Don't you have your own National Socialist 'blog to run?

  • ||

    Autofellatio, for example.

    Precisely. The grammar rules for Latin are...troubling, but it makes some awesome-ass nouns.

  • ||

    There are also variants cited by other alchemists. One such variant involved the use of the mandrake. Popular belief held that this plant grew where semen ejaculated by hanged men (during the last convulsive spasms before death) fell to the ground, and its roots vaguely resemble a human form to varying degrees. The root was to be picked before dawn on a Friday morning by a black dog, then washed and "fed" with milk and honey and, in some prescriptions, blood, whereupon it would fully develop into a miniature human which would guard and protect its owner. Yet a third method, cited by Dr. David Christianus at the University of Giessen during the 18th century, was to take an egg laid by a black hen, poke a tiny hole through the shell, replace a bean-sized portion of the white with human semen, seal the opening with virgin parchment, and bury the egg in dung on the first day of the March lunar cycle. A miniature humanoid would emerge from the egg after thirty days, which would help and protect its creator in return for a steady diet of lavender seeds and earthworms.

    If I may be so bold as to speak for the group...WHAT THE FUCK?!

  • NolongerTofuSushi||

    SF,

    I second Nick's query. Will add that you sound like my English 101 instructor during a smoke break.

  • Taktix®||

    If I may be so bold as to speak for the group...WHAT THE FUCK?!

    Sounds no less rational than a talking snake and a guy living in a whale, err, big fish for three days...

  • ||

    I have not read any of the comments prior to posting this one, consider this a pre-emptive strike. Only a moron or a totalitarian would support upholding the McCain Feingold Campaign Finance Reform Free Speech Suppression Act.

    "Congress shall me no law" is pretty goddamned clear to me.

  • ||

    I guess it would be a good time to admit that I am merely a homunculus created by Episiarch through excessive masturbation.

    Excessive?!? It's exactly as much as needed, no more, no less.

  • ||

    Alchemists were weird dudes. Poised between the dark ages omni-answer of "God did it" and the Enlightenment-led search for empirical evidence, they had just enough of the scientific investigation process to come to some hilarious conclusions.

  • NolongerTofuSushi||

    "Congress shall me no law" is pretty goddamned clear to me.

    Not to me. I need to get a typo translation refresher.

  • Taktix®||

    Alchemists were weird dudes. Poised between the dark ages omni-answer of "God did it" and the Enlightenment-led search for empirical evidence, they had just enough of the scientific investigation process to come to some hilarious conclusions.

    And they sold poison to star-crossed lovers as well...

  • ¢||

    I don't think the "civil penalties" in this law include prison. Am I wrong on that?

    If you don't pay the "civil penalty," you go to jail.

    Then if you're all WTF NO about that part, they'll kill you.

    Every law carries the death penalty, if you're serious about not obeying it.

  • ||

    "...That law prohibits corporations, including *nonprofits* like Citizens United..."

    Whether or not you agree that organizations should pay taxes, Citizens United has made a conscious decision to enjoy tax-free non-profit status.

    Non-profits cannot electioneer. Wouldn't it piss off most of Reason's readers if a bunch of Evangelical churches produced videos portraying Ron Paul in a bad light, right before the last presidential election?

  • ||

    the Obama administration argues that the Constitution allows the government to censor books and Web content as well, all in the name of preventing "the appearance of corruption."

    They know what's good for you.

  • ||

    From the Random House dictionary definition of homunculus: "a fully formed, miniature human body believed, according to some medical theories of the 16th and 17th centuries, to be contained in the spermatozoon."

    Now that's a theory.

  • Stagman||

    Ladies and Gentlemen, let's play a game. Anyone who can name any Constitutional rights we still have wins a new car...

    The 3rd Amendment is still good. I would like a Mini Cooper S. Bay Area parking spots can be tight to get into in a normal sized car.

  • ||

    Non-profits cannot electioneer.



    No, you cannot deduct contributions to non-profits that electioneer. Think ACLU and NRA. Both are "non-profits", neither has tax-exempt status for contributions with the IRS.

    IOW you cannot deduct contributions to political organizations from your income for tax purposes.

    The above comment was intended for informational purposes only, it should not be construed as an opinion on US tax policy.

  • Stagman||

    Damnit, already been said. That's what you get when you don't read all the prior-posts before posting.

  • stuartl||

    Alchemists were weird dudes. Poised between the dark ages omni-answer of "God did it" and the Enlightenment-led search for empirical evidence, they had just enough of the scientific investigation process to come to some hilarious conclusions.

    For instance Newton's weird "action at a distance" gravity idea.

  • ||

    stuartl,

    Anybody who injects sperm into a chicken egg to make a tiny slave/bodyguard gets called "weird" by me. That's just how I roll.

  • ||

    stuartl,

    Explain to me the mechanism behind gravity. It's a particle. (Slap.) It's warped space. (Slap.) It's a particle. (Slap.) A particle, warped space.

  • ||

    SugarFree,

    Weird? Only if you use your own sperm, like Anton van Leeuwenhoek did when he needed some to view in his microscope. "Go 'way, sciencin'!"

  • ||

    Jeez - I was a big admirer of the performance art that TofuSushi was - I feel left out that I don't get to know...

  • ||

    Maybe it should be, "Go 'way, 'gatin'" (as in "investigating")?

  • ||

    Just to advocate ol' Mr. Satan, would it be so tough to avoid the time restriction, i.e., 30 days before the primary, 60 before the election?

    Becomes very impractical for Presidential candidates, as the primaries are spread over nearly a year before the election itself.

    And, of course, once you open the door to these kinds of time restrictions in general, they become very difficult to control. If 60 days is OK, why not 90? 120? Etc.

    Finally, for state candidates, you have to deal with the national media. Would it be OK for me to run my Hillary documentary in New Jersey during the blackout period, even though the national news (and even NJ broadcast stations) would beam it into New York? What about cable/satellite? If they go to New York subscribers, does that mean they are barred from showing the documentary? To everyone?

  • Lord Jubjub||

    Actually, the 7th amendment seems to be largely intact, too.

  • stuartl||

    Anybody who injects sperm into a chicken egg to make a tiny slave/bodyguard gets called "weird" by me.

    I wouldn't be at all surprised if Newton had tried it. He was one weird dude, and that weirdness helped him do some remarkable science.

    Explain to me the mechanism behind gravity. It's a particle. (Slap.) It's warped space. (Slap.) It's a particle. (Slap.) A particle, warped space.

    Yes. All will become clear when they finally find the Higgs boson, in the year 2362.

  • alan||

    "Congress shall pass no law" is pretty goddamned clear to me.

    In Washington parlance, that is what makes you an 'ideologue' and not a 'moderate' because of the absolutist conclusions you draw from the words that are part of a process that evolves over time and not just some rigid suicide pact of a contract.

  • alan||

    And they sold poison to star-crossed lovers as well...

    I would have done the same. Those two could make a Hallmark Card barf.

  • ||

    Jonah Goldberg over at the NY Post has a hypocritical commentary about the case

    Hypocritical? How? Was Goldberg previously advocating that the government ban movies that were critical of Republicans and Republican candidates?

  • hmm||

    I guess people will have to just start pirating wavelengths and doing doing plays while armed.

    Not too bad an idea really.

  • ||

    Would someone let me know when we the people gave the Federal Government the right to dilute our Bill of Rights. I believe the 1st amendment still protects our freedom of speech. It is our right to criticize anyone who runs for any office. We may inform and educate others to the person who seeks office and their possible actions once there. It is time we the people took back our rights, freedoms and liberties.

  • JW Gacy||

    My college room mate works for Citizens United. He's a big fan of John McCain. I tried to tell him that this was an un-Constitutional. He just wouldn't believe me. "Money isn't speech, blah blah blah."

  • ||

    Personally, I find it odd that Scalia is against this. He is usually the biggest censorship advocate in the U.S. Must be because Hillary was at the shit end of it.

  • ||

    AFAICT the whole argument concerns financing.
    The movie can be shown if it clearly and legally adheres to campaign finance laws. Simply putting the names etc of those who paid for the film in the public record means good to go. The presentation here is misleading.

  • ||

    Why wouldn't they just put it on Youtube?

    Can you get busted for putting it there? Or vimeo.com?

  • batteries||

    very nice,is it not?

  • Scarpe Nike||

    is good

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