“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.
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