By guest blogger LAURENCE H. WINER, Professor of Law and Faculty Fellow, Center for Law, Science & Technology, Sandra Day O’Connor College of Law, Arizona State University, Tempe, Ariz.
In last week’s Supreme Court oral argument of the “Hillary: the Movie” case, Citizens United v. F.E.C., the government attorney apparently perplexed several of the Justices by the breadth of his argument. His argument, and the responses of some Justices, highlight a crucial aspect of the First Amendment.
Citizens United is a nonprofit corporation that made a 90-minute film sharply critical of Hillary Clinton. During her presidential campaign it wanted to pay cable companies to make the film available to subscribers free via video on demand.
The McCain-Feingold “Bipartisan Campaign Reform Act of 2002” (BCRA), however, bans “electioneering communications.” This ban prohibits a corporation or labor union from using its general treasury funds for any broadcast, cable, or satellite communication that constitutes express advocacy or its functional equivalent regarding a clearly identified federal candidate within a set time prior to an election. Electioneering communications, however, do not include news or commentary by a media company, and the statutory ban does not apply to the print media or the Internet.
We are used to media exceptionalism, at least with regard to broadcasting. That is, throughout its history broadcasting has struggled under a strange First Amendment jurisprudence affording it limited freedom of expression and subjecting it to a panoply of “public interest” obligations that would be constitutional anathemas for any other medium of mass communication.
Political access rules and requirements for children’s educational programming, for example, fall in this public interest category for broadcasting. BCRA strangely perpetuates this dichotomous approach by, on the one hand, in effect covering only “television” (broadcast, cable, and satellite), and at the same time exempting from its reach news and commentary in all media.
When pressed by the Justices, the government attorney took the position that the Constitution would allow Congress, if it wished, to extend the statutory ban to print media, a book for example. To this, Justice Alito replied, “That’s pretty incredible,” going on to characterize the government’s position as allowing it to ban a book about politics, under an expanded BCRA statute, if published by a corporation close to an election.
Justice Kennedy then demonstrated how bizarre the government’s position is by noting that a book, downloaded by satellite onto a Kindle reader, presumably both would come under the reach of the present statute and, in the government’s view, constitutionally be subject to censorship. Before long Justice Scalia confessed to being “a little disoriented” because he thought the Court was dealing with the constitutional provision, known as the First Amendment, that he remembers as beginning with “Congress shall make no law.”
BCRA’s restriction on political speech in the guise of campaign finance reform is troubling in its own right. What great evil of political propaganda justifies this sort of censorship? But it is good to see members of the Court now “disoriented” by the hopelessly disjointed, media-based approach to First Amendment freedom of expression that the Court itself spawned in the middle of the 20th century and unfortunately maintains in our radically transformed digital era.
These Justices were incredulous that the government would suggest it could extend a regulation of electronic media to print. But the disconnect finally should go just as strongly in the other direction – what is prohibited in regulating print media is also prohibited for all media, including broadcasting.
In recent years, the Federal Communications Commission under former chairman Martin pursued a relentless and unwarranted campaign against so-called “indecency” on broadcast television. The Supreme Court has pending before it a challenge to the Commission’s authority in this area to regulate what no government entity can restrict in any other media. It would be gratifying if in its decision in the next few weeks the Court finally adopts and applies a unitary First Amendment.
Professor Winer is also the Faculty Editor of Jurimetrics.