Citizens United

Does the First Amendment Cover Books, Movies or Netflix?

Not as clear cut to regulators as it may be to the rest of us.

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swruler9284/flickr

Back in August, Netflix added a couple of political movies to its streaming service. The first was Funny or Die Presents: Donald Trump's The Art of the Deal: The Movie—an entertaining, extended jab at this year's GOP presidential nominee. The second was Al Gore's documentary, An Inconvenient Truth.

The question America now must ask itself is simple: Should Netflix be allowed to do this?

The answer to that, you might think, should be obvious. And yet to three members of the Federal Election Commission, it is anything but.

The FEC is split evenly between Republicans and Democrats. This leads to many stalemates and causes much teeth-grinding rage among those who would like it to crack down harder on political speech, especially by incorporated nonprofits such as the NRA and Planned Parenthood, which spend money on elections without disclosing their donors.

In the instance at hand, it was not the Republicans but the Democrats who shrank from endorsing what should be the fundamental right to distribute movies. After all, the Supreme Court has made it plain that "moving pictures, like newspapers and radio, are included in the press whose freedom is guaranteed by the First Amendment."

Regarding that point Lee Goodman, one of the three Republican members (and a former counsel to the Virginia GOP), recently tried to have some language—just a few words, actually—inserted into a notice of proposed rulemaking. The language would have made it clear that the "press exemption" in campaign-finance regulations applies not only to newspapers, magazines, and TV but also to movies, books, and streaming services such as Netflix and Amazon Prime.

That campaign-finance regulations have a "press exemption" in the first place is what poker players would call a tell, and what you and I would call a dead giveaway. The exemption is necessary because without it newspapers, TV networks, and similar media would routinely be in violation of the law whenever they carried anything that might be construed as support for, or opposition to, a political candidate. They are, after all, corporations—and campaign finance laws strictly limit corporate involvement in elections.

The media exemption helps explain why most coverage of campaign-finance regulation paints it as woefully inadequate: Media organizations can agitate for restrictions on political speech by other types of corporations, secure in the knowledge that they enjoy special protection from the rules that apply to everyone else.

But that could change if the makeup of the FEC ever changes. When The New York Times lashed out at the FEC for being an "impotent joke" and demanded that it be replaced by a new agency—one that can be stacked in favor of more regulation—FEC Commissioner Ann Ravel tweeted, "Finally: my concerns are being heard." (Translation: Head of Government Agency Agrees Government Agency Should Have More Power.)

When Goodman proposed language stipulating that books, movies, and streaming services should be treated according to the same First Amendment principles that protect newspapers and magazines, Ravel joined her two Democratic colleagues in opposition.

Ravel claimed she was concerned about timing: "None of us have had an opportunity to really review and think about" Goodman's proposal, she said. First, that wasn't true; Goodman had circulated it months before. More importantly, how much reviewing and thinking should be needed to agree that books and movies are covered by the First Amendment?

Quite a lot, apparently. In another recent case, a right-wing movie-maker made a movie, "Dreams From My Real Father," contending that Barack Obama is really the son of a communist, and then mailed millions of copies to voters in swing states. (The premise was so ridiculous that it actually turned off Republicans in a focus group.)

When a complaint against the movie was lodged at the FEC, the three Republican commissioners ruled that it was covered by the media exemption. The three Democratic commissioners ruled otherwise. One of them, Ellen Weintraub, explained her reasoning succinctly: Noting that the press exception depends on "whether the press entity was acting as a press entity," she asserted that "press entities do not act as press entities when they distribute millions of free DVDs immediately before an election solely in electoral swing states." Oh? What about free newspapers? Free magazines?

In a June case this year, the FEC took up the question as to whether Fox News' two-tiered arrangement during its Aug. 6 debate last year violated federal regulations. Two commissioners—Ravel and Steven Walther, another member of the Democratic bloc—voted to take enforcement action against Fox. A subsequent vote on a measure stipulating that the FEC lacks the authority to regulate how news organizations run debates failed on a 3-3 partisan vote.

All of this should alarm members of the media for two reasons. First, newspapers are now producing video on a regular basis.

They also publish books, such as the Washington Post's "Trump Revealed" (available on Amazon, at Barnes & Noble, and on Audible). Such works include news content, but then so do many other movies and books produced by non-media sources. It is not clear why the former should be exempt from regulation if the latter are not.

The other reason to be alarmed is that the Democratic members of the FEC seem to think they can, as Goodman puts it, "sit in judgment of … news directors' editorial criteria"—and that while they can do so only rarely at present, they would like to do it much more.

They might just get the chance. Hillary Clinton has promised that, if elected, she will propose a constitutional amendment in her first 30 days so that the First Amendment no longer can limit the reach of campaign-finance law. If she does, the media might finally wake up to the implications of such a proposal. But by that point, it might be too late.

This column originally appeared at the Richmond Times-Dispatch.

NEXT: Trump Debate Quiz: What Did He Say and Why?

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  1. Waiting for President Clinton to weigh in on this.

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  2. Only dictators and third world countries support criticizing politicians.

  3. After all, the Supreme Court has made it plain that “moving pictures, like newspapers and radio, are included in the press whose freedom is guaranteed by the First Amendment.”

    What about ‘talkies’?

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  5. Time to just bust out my old rant. Citizen’s United and campaign finance reform were never about money in politics. It’s about who controls what money and what message gets out. The politicians don’t want and have no incentive to remove money from politics, but what they can’t handle are outside forces distorting their message. That money should be funneled directly to the campaigns. Also, the laws allow completely arbitrary and partisan enforcement against people guilty of wrong think. That’s our bureaucracies favorite pastime! What’s not to love?

    At this point, I just skip over the arguments over this and link to the ACLU’s position on Citizen’s United.

    1. Campaign finance reform itself was never about money in politics.

      1. Not to be a dick, but I believe I said “and campaign finance reform were never about money in politics.”

        1. You’re right, I became overly focused on CU.

          When Campaign Finance Reform specifically said that the commission could rule that “speech was money” even when a dollar never changed hands, that was indication right there about what was going on.

      2. Incumbent protection.

    2. Yeah, pretty much. The parties want to control the whole political debate. Can have “outsiders” getting involved.

      I find the frequent scapegoating of “outside groups” funding election advertising very telling.

    3. I’ll never get the whole sloganeering “money isn’t speech” argument.

      Citizen’s United resulted in some campaign contributions being considered equivalent to political speech, specifically including “electioneering communications”, defined by BCRA as a form of campaign contribution.

      So BCRA defined speech as “contributions”, and SCOTUS ruled that speech is protected by the first amendment. I know that money isn’t speech, but, speech is speech, right?

      Even considering the broader implications of campaign contributions as a form of political speech: that’s not a vague, general declaration that “all money” is speech. Saying “money isn’t speech” is like arguing that “sex shouldn’t be illegal” as a reason to abolish rape laws.

      Trying to regulate money directly involved in political speech is equivalent to regulating political speech itself, and there’s no way liberals would tolerate “money not rights” work-around to denying any of the rights they happen to actually cherish (see abortion, etc.).

      “Money isn’t speech” is just empty sloganeering, pretending to be mature adult thought on issues.

      1. The easiest way to make this point is to ask if we passed a law saying the NY Times could not spend a penny distributing their newspaper would it be an infringement on freedom of the press? If money isn’t speech it isn’t the press either and there should be no problem making it illegal for newspapers to spend money.

      2. I know that money isn’t speech,

        Sometimes it is. When its used to distribute a message. If speech is a campaign contribution, then campaign contributions are speech.

      3. “Money isn’r speech” is all one with much of the Progressive Left’s ‘reasoning’. Such as the continued failure of ‘Climate Science’ predictions PROVING that the global warming claptrap they were based on is real.

        And you can’t get them to admit that they’ve said something self-contradictory and stupid. You’d get them to spit-rosa their children first.

        1. failure to bring up abortion -1 partisan points

        2. “Such as the continued failure of ‘Climate Science’ predictions PROVING that the global warming claptrap they were based on is real.

          And you can’t get them to admit that they’ve said something self-contradictory and stupid. You’d get them to spit-rosa their children first.”

          I believe in the basic mechanisms of global warming and that we currently experiencing mild warming. However, it’s obvious that previous global warming predictions have been alarmist and wrong.

          And the current trend of declaring every year warmer than the last, is highly misleading. We are in a plateau, that’s obvious. But the Alarmist didn’t want to admit that, so now (NASA) is declaring 2016 0.01 degrees warmer than 2015. That is well within the margin of error and following normal statistical nomenclature you can’t know if 2016 is really warmer than 2015. Clearly NASA knows this, but they are deliberately misreporting the data for political reasons.

          It’s not science, it’s politics.

  6. Ravel claimed she was concerned about timing: “None of us have had an opportunity to really review and think about” Goodman’s proposal, she said.

    Who are these people and when can I vote them out of office?

    1. They are appointed by the President, and must be evenly split between the two major political parties. Your next opportunity to make a change comes November 8, 2016 when you elect a new president. Choose wisely.

      1. So if a third party candidate gets elected, he still has to choose between the two major parties?

        1. That’s my understanding, though re-reading the FEC website I see this: “The six Commissioners, no more than three of whom may represent the same political party, are appointed by the President and confirmed by the Senate.”. I guess President Johnson or Stein could appoint three Libertarians or Green Party folks, but the only choice you have when registering to vote, and thereby choosing a party, are Democrat, Independent, and Republican.

          1. but the only choice you have when registering to vote, and thereby choosing a party, are Democrat, Independent, and Republican.

            False. Party affiliation/declaration is not required to register to vote (except for voting in primaries).

          2. I wouldn’t be surprised if President Clinton decides to appoint 3 Democrats, 2 Republicans and a Green.

  7. “Does the First Amendment Cover Books, Movies or Netflix?”

    No.
    A-1 does not ‘cover’ one sort of speech or the other, as if it granted some sort of ‘protection’.
    A-1 covers what the government is allowed to do regarding speech: Nothing.

    1. Books, movies and Netflix are press, not speech. Which of course is protected in exactly the same way speech is.

      I think “cover” is fine. It covers the things that congress isn’t allowed to make laws about.

      1. “Books, movies and Netflix are press, not speech.”

        What? The “press” of 1A refers to operating the equipment of a press.

        1. While this is undoubtedly true given the historical facts, like a lot of other things in the constitution, it’s been “re-written” to single out journalists as a special class.

          An abomination to be sure, but the law of the land.

          1. “The Press”, “Militias”, etc. Reinterpreted so that inalienable rights are really just government granted privileges extended graciously to specific professionals on an as needed basis.

    2. The question America now must ask itself is simple: Should Netflix be allowed to do this?

      No, that’s not the question. The question to be asked should be “Is the government is allowed to stop them.”

      1. Correct.
        I’m not about to yield the terms of the debate.

      2. I’d say the questions are equivalent, since the “allowed” means “allowed under the law”.

        Of course, I prefer the latter formulation since “allowed” suggests that government should be deciding what specifically is allowed rather than deciding what certain very specific things should be forbidden.

        1. The end result is the same, but the I still think it’s best to focus on the government’s action, not Netflix’s actions.

          Most everyone here intuitively knows the difference, but outside of HnR it’s necessary to state exactly what’s begin discussed.

          1. Yeah, I’m being a bit pedantic on this point. But we aren’t outside of H&R and I come here to try to get away from strategic sloganeering and talking points. Which I guess is really too much to ask for in an election year.

            It definitely is good to remind normal people what the 1st amendment actually does and says.

        2. “I’d say the questions are equivalent, since the “allowed” means “allowed under the law”.”

          Disagreed.
          The first instance has me asking whether I’m allowed to do X.
          The second says the government has to come up with a valid reason to prohibit me doing so.
          The burden is on the government, not the individual.

        3. They are not equivalent, because one assumes that the default is that the government is allowed to specify everything regarding speech unless stopped in a particular case, while the other assumes the Constitution says — the govt is not allowed to do anything to specify which speech may be engaged in.

          1. I understand the point and agree that it is better to frame it the way the first amendment itself does, as a limitation on government. But in common usage, they are equivalent.

            It is a good (and troubling) observation that the common usage has come to assume that government is empowered to control whatever they see fit. Saying that something is allowed does imply that there is someone doing the allowing.

            Which in a way is the default situation in reality. Might makes right. Governments that have strictly and explicitly limited powers are the exception, not the rule.

            1. “But in common usage, they are equivalent.”

              You continue to insist that.

              I don’t agree.

              1. I’m just talking about how people actually use the language.

                If you say “is Netflix allowed to stream X?”, most people are going to read that as “is there any law to stop them?” not “has government specifically allowed them to stream X?”. That’s all.

                But on further reflection, I’ll agree and say that the correction is warranted. The notion that everything is either allowed or forbidden is not good to have built into the language.

  8. contending that Barack Obama is really the son of a communist

    *looks around nervously*

    Is this controversial?

  9. “press entities do not act as press entities when they distribute millions of free DVDs immediately before an election solely in electoral swing states.” Oh? What about free newspapers? Free magazines?

    What about when when corporate owned media outlets – such as newspapers – endorse candidates? What about when corporate owned media coordinates their news segments and stories with a national presidential campaign?

    The only way you could even pretend to enforce this regime of regulations is if you allow the government to hand out licenses to the press. You’d need government approval to operate as a member of the media. Which I’m sure sounds great to many a politician.

    1. press entities do not act as press entities when they distribute millions of free DVDs immediately before an election solely in electoral swing states

      Of course they do. They are publishing something. That’s what “the press” is.

  10. Oh so she brought up Citizens United and lobbed yet another softball that Trump could have hit out of the park…if he weren’t just as anti-1A as her?
    *didn’t watch last night*

  11. Hillary Clinton has promised that, if elected, she will propose a constitutional amendment in her first 30 days so that the First Amendment no longer can limit the reach of campaign-finance law.

    The fact that Hillary Clinton has suggested going through the legitimate constitutional process is both shocking, and pleasantly surprising.

    1. But, if Congress and/or the people don’t do the right thing, she’ll still have a pen and a ‘phone.

      1. To be sure. But at least she entered the room with a fig leaf on.

        1. *swears off figs for life*

    2. That proposal will consist of a SCOTUS nominee being submitted, who if they get on the Supreme Court will result in the necessary paperwork being written in a court case to change the 1A’s meaning.

    3. Get your 1984 correct. She says she will ask for an amendment, she means she will sign a presidential order.

      Terrible things is; they both would sign the same order..Sadface

  12. It covers Jesus in piss and Mary covered with shit, just as the founding fathers intended.

    1. Not sure what that has to do with the price of eggs.

      1. Modern art is degenerate and Jewish. It is known.

      2. It was a crude attempt at humor.

      3. It means you can have all the porn and obscene art you want as long as you don’t criticize the government. Zeb.

        1. The government fucks everything up.

          [Check to make sure internet still exists]

      4. “Not sure what that has to do with the price of eggs.”

        It’s classic bread and circus politics. The poloi can have their social freedom of speech, particularly if it can be used as a target to attack conservatives, but political speech must be cordoned off and ‘protected’.

  13. “Does the First Amendment Cover Books, Movies or Netflix?”

    There’s no way to know until Hillary appoints experts to tell us, is there?

    There’s not way to know anything for sure until Hillary appoints experts to tell us.

    1. We already know. Since books, movies, and Netflix all could conceivably allow for dissemination of information critical of Hillary, the First Amendment doesn’t cover them.

      1. You can bet she’ll attempt to revive “the fairness doctrine” in an attempt to kill talk radio.

        1. She will do that and much more, if the wins. And since she would be loathed by a large majority of the country, the moment she entered office, it would be a catastrophe for the legitimacy of government in this country. I know that sound enticing but it really would not be a good thing.

          The other thing to think about it is Obama has done catastrophic damage to the Democratic Party as a whole during his presidency. If a President who can play the race card and manage to be liked by around 50% of the country still does that kind of damage to the party as a whole, what kind of damage would one as unpopular and loathsome as Hillary do? Will there be any elected Democrats in this country outside of a few deep blue states and college towns in four years?

          1. If by “catastrophic damage” you mean Hillary is likely to win in a landslide, and the Democrats are likely to retake the Senate, then sure.

            1. “If by “catastrophic damage” you mean Hillary is likely to win in a landslide, and the Democrats are likely to retake the Senate, then sure.”

              You are smoking crack. Hillary will probably win, but it won’t be a land slide. Indeed, Clinton will be lucky to break 50% of the vote. There’s no way she’ll crack 55%, let alone, the 60% to fall into traditional land slide territory.

              The Democrats will probably win the Senate. That’s not really news, it’s been the general expectation all year, since they have a favorable set of seats open this year.

  14. Dear FEC,

    Fuck you.

    Sincerely,
    LynchPin1477

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  16. In the end. The first will be the 1st to go. If you can’t speak, nothing else matters really.

    1. The 2nd guarantees a right to be heard. You can’t easily squelch the message of a well armed and organized group.

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