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.



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.