Citizens United v. FEC - Release: 9-2-2009

Could These Books Be Banned?

As Supreme Court Considers Ban on “Hillary: The Movie,” Institute for Justice Asks if First Amendment Protects “Top Ten” Political Books

WEB RELEASE: September 2, 2009 
Media Contact:
Lisa Knepper (703) 682-9320

[First Amendment] 


Arlington, Va.—What do Bill Clinton, Peggy Noonan, John Kerry, Michael Moore, Maureen Dowd and Swift Boat Veterans for Truth founder John O’Neil have in common?

All wrote books that could have been banned, just like “Hillary: The Movie,” the film at the heart of the campaign finance case Citizens United v. Federal Election Commission.  The U.S. Supreme Court will hear new arguments in the case Wednesday, Sept. 9, in an unusual session ordered after justices appeared troubled by the government’s suggestion during the first oral argument that it could ban corporate-funded books.  Indeed, Democracy 21 President Fred Wertheimer, a leading advocate of campaign finance regulations, admitted this week to The New York Times, “A campaign document in the form of a book can be banned.”

Today, the Institute for Justice released a “top ten” list of political advocacy books from the last four presidential election cycles and asked:  If the First Amendment doesn’t protect “Hillary: The Movie,” would it protect books like these?

1. Dude, Where’s My Country?, Michael Moore, 2003 (“There is probably no greater imperative facing the nation than the defeat of George W. Bush in the 2004 election.”)
2. Bush Must Go, Bill Press, 2004 (“If you need any ammunition for voting against George Bush, here they are:  the top ten reasons why George Bush must be denied a second term.”)
3. My Dad, John McCain, Meghan McCain, 2008 (“There are a few things you need to know about my dad, and one of them is that he would make a great president.”)
4. The Case Against Hillary, Peggy Noonan, 2000 (“And that is the great thing about democracy:  Before Hillary Clinton gets to decide your future, you get to decide hers.”); and The Case for Hillary, Susan Estrich, 2005 (“And when I say a woman president, it means Hillary.”)
5. Unfit for Command, John E. O’Neil and Jerome R. Corsi, Ph.D., 2004 (“I do not believe John Kerry is fit to be commander in chief of the armed forces of the United States.”)
6. A Call to Service, John Kerry, 2003 (“It is that determination I hope to bring to the election of 2004, to the presidency of the United States, and to the common challenges Americans face.”)
7. Lies and the Lying Liars Who Tell Them, Al Franken, 2003 (“George W. Bush is the worst environmental president in our nation’s history.”)
8. Shrub, Molly Ivins & Lou Dubose, 2000 (“George W. Bush is promising to do for the rest of the country what he has done for Texas.”)
9. Bushworld, Maureen Dowd, 2004 (“So it’s understandable why, going into his reelection campaign, Mr. Bush wouldn’t want to underscore that young Americans keep getting whacked over there [in Iraq].”)
10. Between Hope and History, President Bill Clinton, 1996 (“Now, I believe with all my heart, this is another moment for Americans to decide.”)


“Every one of these books takes a position on a candidate’s qualifications for office, just like ‘Hillary: The Movie,’ and every one was published by a corporation,” said Steve Simpson, a senior attorney with the Institute for Justice, which filed a friend-of-the court brief in Citizens Untied.  “Every election season, candidates and their backers and detractors flood stores with similar titles.  The question for the government and campaign finance ‘reformers’ is:  Why not ban these books, too?”

Under McCain-Feingold’s electioneering communications ban, the nonprofit corporation Citizens United was barred from airing “Hillary:  The Movie” on cable TV during the 2008 primary season.  A lower court ruled the film fell under McCain-Feingold because “it takes a position on [then-presidential candidate Hillary Clinton’s] character, qualifications, and fitness for office.”  The Supreme Court is now revisiting the parts of McConnell v. FEC that upheld McCain-Feingold’s ban on corporate electioneering communications, as well as Austin v. Michigan Chamber of Commerce, which upheld a ban on corporate express advocacy.

Although McCain-Feingold applies only to broadcast speech, if the Court okays the banning of Hillary: The Movie, there is no principled reason Congress could not extend the ban to books and other media, like newspapers and the Internet. 

“Speech is speech, no matter who is speaking, who funds it or in what form it comes,” continued Simpson.  “The same ideas do not become dangerous because they are funded by corporations or because they appear in an ad or film instead of a book or newspaper.  The Supreme Court must return to first principles and protect all speech, regardless of the speaker, and overturning Austin and McConnell is a critical first step.”
   
“Political ads, books and films, like ‘Hillary: The Movie’ or Michael Moore’s ‘Fahrenheit 9/11,’ contribute to a robust and healthy debate, and they all deserve the fullest protection of the First Amendment,” said IJ Senior Attorney Bert Gall.  “What’s at stake in Citizens United is whether the First Amendment protects this speech from censorship if Congress decides that it prefers silence over debate.  The Supreme Court should reject censorship and open the floodgates to all speakers—and then let citizens and voters decide for themselves.”

The Institute for Justice defends First Amendment rights and challenges campaign finance laws nationwide.  In May, the Institute secured a federal court ruling striking down Florida’s electioneering communications law, and IJ previously won a ruling in the Washington Supreme Court that stopped an attempt to regulate media commentary as “in-kind” political contributions.  IJ is currently challenging laws in Colorado that suppress speech about ballot issues by grassroots groups and nonprofit organizations, as well as Arizona’s “Clean Elections” law for funding political campaigns with taxpayer dollars.  For more information, visit www.ij.org/firstamendment.


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