Hacker Cinema
The Story of Citizens United v. FEC
2011 · Film · documentary
Directed by Louis Fox
The Story of Citizens United v. FEC, an exploration of the inordinate power that corporations exercise in our democracy.
1 negative15 neutralfrom 16 commenters
Where to watch
No streaming data for this title.
24 comments on Hacker News
Do we have freedom of press if congress can prevent us from buying a printing press (or spending money to make a movie about a politician as in Citizens United)? If so 1A becomes a very weak constraint on government.
That’s a profoundly incorrect misunderstanding of the Citizens United decision, which was to remove restrictions on political spending by corporations.
In other words, by your distinction, the decision was about stacks of cash, not movies.
A case regarding a movie was indeed brought to the court. The court decided to make a far more expansive decision. The movie became a footnote, and has effectively no meaningful relationship to the court’s final decision or its impact.
As for getting lost in a discussion about the difference between an ad and a movie, that’s really going down a rabbit hole of deliberately missing the point completely. Some word play is just too divorced from reality to engage with. There are many very short movies, and any rational person would be able to distinguish them from ads to a high degree of accuracy.
I assume the poster is referencing Citizens United v. FEC, specifically about the government's use of the 2002 Bipartisan Campaign Reform Act to restrict showing of political documentaries (apparently, called "Hillary: The Movie" and "Celsius 41.11").
While (as far as I know) the law was never actually used to ban books (only documentaries), the case became infamous because the government argued that it had the right to ban books if it wanted to. See, e.g., the NYTimes article below: "The [government's] lawyer, Malcolm L. Stewart, said Congress has the power to ban political books, signs and Internet videos, if they are paid for by corporations and distributed not long before an election.".
https://www.nytimes.com/2009/03/25/washington/25scotus.html https://en.wikipedia.org/wiki/Citizens_United_v._FEC https://www.law.cornell.edu/supct/cert/08-205
Legal precedents are about the facts and law at issue in the case. Courts do not weigh in on larger policy debates in society.
Your suggestion that Dred Scott was “about property rights” and slavery was incidental is blatantly inaccurate. It was a lengthy legal defense of the institution of black slavery as such: https://en.wikipedia.org/wiki/Dred_Scott_v._Sandford
In your view, what should the Supreme Court have ruled in Citizens United? That movies made through corporate entities aren’t protected by the first amendment?
That wasn’t the “outcome” of Citizens United. The outcome was that the government can’t punish a small non-profit from making a movie critical of a candidate within 90 days of an election.
You can read whatever you want into the implications of the rule articulated in the case. Folks on the other side can say that, if the decision had gone the other way, nothing would stop the government from regulating how the New York Times uses its corporate funds.
But it’s important to look at the actual case, legally because it is really the only thing that’s decided, but practically because it is an actual conduct the government decided to prosecute. The government didn’t think the law just covers billion dollar advocacy campaigns. It prosecuted a small non-profit entity for publishing a movie. It’s not a “parade of horribles” hypothetical consequence, it actually happened. The “alternative” would be allowing the government to prosecute this non-profit for publishing a political movie.
The wikipedia summary (https://en.wikipedia.org/wiki/Citizens_United_v._FEC) is pretty good. The government can't prohibit anyone (people, corporations, unions, etc) from making political speech, so long as it's not directed by the candidate. So I can't donate a billion dollars to a candidate's campaign, but I can run a billion dollars of ads supporting him (or against his opponent), so long as I don't receive direction/instruction from the candidate. Or, in this case, make and advertise a movie. The question you have to ask yourself is whether the alternative would be worse.
> In the 2010 Citizens United decision, the court’s conservative majority opened the door to allowing corporations (and unions) to spend unlimited amounts on political advocacy, as long as they donated to interest groups and political-action committees rather than to campaigns.
Unsurprising to see Emily Bazelon deeply distort Citizens United. That case wasn’t about “unlimited money.” The entity that was prosecuted was a small 501(c)(4) non-profit (the same category as the NAACP or ACLU), who made a movie critical of Hilary Clinton too close to the election. The government’s lawyer admitted, that under the government’s theory of the first amendment, nothing would preclude the government from prosecuting a corporation that spent corporate treasury money to publish a book: https://www.ifs.org/blog/citizens-united-its-all-about-the-book-banning.
In fact, had Citizens United gone the other way, the Trump administration would be able to tell Google and Twitter they can’t use corporate funds to moderate political content. There is a reason the ACLU was in the conservative side in that case.
That the media has for a decade created a Twilight-Zone reality to make the public believe that Citizens United was about money and not a political movie should call into question the article’s whole premise. Do you really trust these gatekeepers of “the Truth” to yield the government’s power to police speech?
It's worth remembering the specific issue in the Citizens United case: "Citizens United, a conservative non-profit organization, sought to air and advertise a film critical of Democratic presidential candidate Hillary Clinton shortly before the 2008 Democratic primary elections"[1].
Individual citizens banding together in a non profit to express their political point of view is at the very heart of what it means to have a democratic process. You can't just say "well they could have done the same thing as individuals" because in many cases this isn't possible. You need the organization of a corporation to do projects like this at scale.
1. https://en.wikipedia.org/wiki/Citizens_United_v._FEC
* Free speech
* Private property
* Preventing small interest groups from having outsized influence
Choose two. Or maybe 2.5 at the most. But the problem is there's no clear delineation between "money" and "speech". At some point you either impose restrictions on free speech, prevent the unlimited accumulation of wealth, or accept that billionaires are just always going to have more political influence than Joe Sixpack.
For as much as people like to shit on it, very few people have actually read the body of Citizens United. If you haven't, I highly suggest doing so. Because it really brings up deep paradoxes that suggest that the First Amendment is fundamentally incompatible with campaign finance restrictions. European countries manage to keep money out of politics, simply by not sharing America's Constitutional guarantee of absolute free speech.
There's no logically consistent way to regulate "money in politics" in a way that doesn't also restrict "speech in politics". Consider all of the below scenarios and tell me at what point "money" ends and "speech" begins:
* A wealthy person makes huge campaign donations to his favored candidate.
* A wealthy person runs for office, and uses his personal wealth to buy campaign ads.
* A wealthy person buys a media conglomerate, and uses his editorial control to favor his preferred positions.
* A wealthy person buys a media conglomerate, doesn't exert direct editorial control, but only hires journalists who share his opinion.
* A wealthy person uses his money to fund movies with no political message. However he becomes famous from starring in his own subsidized movies. He uses his fame to spread his message without directly buying access.
* A wealthy person hires people to attend protests in favor of his position.
* A wealthy person finds people who genuinely wants to attend his protests, but subsidizes their transportation, signs, organization, etc.
* A wealthy person buys nice clothes and speaking lessons for people that share his positions so they become more persuasive.
* A wealthy person buys a chain of sports bars and makes sure that the TVs only play his preferred cable news channel.
* A wealthy person biases hiring to favor like-minded people. On net that raises the status and influence of people like him.
* A wealthy person biases his firm to doing business with firms run by ideologically like-minded CEOs. That makes people who share his views wealthier, and hence gives them more influence.
* A wealthy person is unbiased when hiring, but locates all his offices in areas that share his views so that hiring naturally biases towards like-minded people.
* A wealthy person uses his money to attract a very famous and attractive movie star. Once married he influences her to his political positions, then that movie star uses her famous and status to influence her fans.
* A wealthy person uses his money to throw big, fancy parties. He invites anyone regardless of views. However at the beginning of the party, when people are enjoying the free cocktails and hours d'oevrues his always gives a toast that gently nudges the partygoers in favor of his views.
The problem is that without Citizens United, all that kept the FEC from banning reporting on political candidates was that the law didn't extend there yet. Because what is a front-page article on a candidate if not an in-kind contribution? Why should the Wall Street Journal be allowed to run an article praising the most recent Republican candidate, if the Sierra Club can't publish a documentary condemning their policies?
People throw a lot of hate towards Citizens United. But the alternative was worse.
It's more accurate to say "individuals don't cease to have rights just because they act through a corporation." There are some rights that don't make sense applied to a corporation, and people don't have those rights when acting through a corporate form. (E.g. the Fifth Amendment right against self-incrimination.) But for most rights, deeming them inapplicable when people are acting as a corporation would be an extremely effective way to eviscerate the underlying right.
The ACLU, Sierra Club, etc., are all corporations. They need to be corporations in order to enable their fund-raising and nationwide scope of activities. Nobody really thinks the ACLU shouldn't have the right to free speech. (Note: The ACLU was on the winning side in Citizens United.) What people are opposed to is the content of the speech that some people speak when acting through the corporate form. (Citizens United was about a movie critical of Hilary Clinton.) But if free speech means anything, it means you can't single out speech based on content.
It boils down to the First Amendment, the government cannot censor speech. In US law groups have the same free speech rights as individuals. Michael Moore doesn’t lose his free speech rights when he makes a propaganda movie with a film studio, and Citizens United didn’t lose their free speech rights when they made their propaganda movie either.
Of course there can be restrictions on campaign spending (i.e. classical bribery). Free speech has never been a defense to crimes like bribery, fraud, etc., that incidentally involve speech. But the situation in Citizens United came nowhere close to that. It was core political speech. The money wasn't a campaign donation, it was used to create and distribute a political movie about a candidate. If the Supreme Court didn't draw the line there, it would have obliterated the line.
Those measures may have been appropriate if the case had presented some tangential issue of the first amendment. A corporation invoking free speech to try and worm out of some malfeasance. But Citizens United involves a flagrant attack on core political speech. The speaker was a political advocacy organization, no different than the NRDC or ACLU, and the speech was not money or some abstraction, it was a movie about a candidate running for political office. Punting on that case would’ve been a total abdication if the Supreme Court’s duty to protect free speech rights.
> equality of air time for each candidate
Where "air time" means "time across all possible cable channels", right?
And presumably equality of "youtube time" too? How do you even measure this?
Seriously, we're way past there being 5 broadcast TV networks and nothing else where you could try enforcing some sort of mandate.
Keep in mind that Citizens United wasn't even "for" some particular candidate. It was against a particular candidate and wanted to show its movie at a point in time when it wasn't even clear who the candidate's opponents would be. Assuming you imposed the "equality of air time" doctrine in this situation, who's air time would the movie come out of, exactly?
It's easy to just claim the system is broken; figuring out how to fix it sanely is much harder.
(And for the record, I agree that the current campaign lengths and costs in the US are ridiculous. What I don't see is how to make them less so without imposing some pretty totalitarian speech controls, which would immediately get coopted by those in power to completely shut down anything resembling third party candidates.)
It's not that simple in this case, because for my first question the answer really needs to be "yes" as a clear First Amendment matter: individual political speech is clearly protected, and video is a common "speech" medium nowadays. So that's a "loophole" that is pretty much required by the Constitution.
It's really not clear to me how one can draw a sane line between the first and second question, for this case, unless you want to forbid any political video that actually takes time/effort/money to do research for (see "documentary").
And then the problem becomes that either you privilege the political speech of rich individuals over non-rich ones even more than we already do, or you have to allow non-rich individuals to pool resources to speak.
The "loophole" is then.. what exactly? What form the pooling takes? Whether the pooling is voluntary? Something else? I see a lot of people who are unhappy with the Citizens United decision, but not many proposals for what the law on this should be apart from "political speech from organizations I disagree with should not be allowed". For example, I see lots of "corporations shouldn't be able to engage in political speech" but very little of "unions shouldn't be able to engage in political speech" from Citizens United opponents. Amusingly, I see a fair amount of "unions shouldn't be able to engage in political speech" from people who support the Citizens United decision. And I have met absolutely no one who opposes the Citizens United decision and also thinks Michael Moore shouldn't be allowed to create movies in election years. Though I expect such people do exist; there just aren't many of them.
Can I create a video and post it on my private youtube channel, as a private individual?
Can I spend $10 million creating the youtube video, if I have that much money as a private individual?
Can I organize a group of 10 friends to each spend $1 million on the youtube video?
Can I organize 1 million people to spend $10 each on said video?
Note that under McCain-Feingold (which is the law that was at issue in Citizens United) the answer to the second question is "yes", as far as I can tell: the law instituted restrictions on corporations and unions, not on rich individuals.
Whether the answer is "yes" for the second and third question would have depended on whether youtube counts as "broadcast, cable, or satellite communication" as well as whether a gofundme campaign should fund under the law, and so forth. So it's really not that hard to come up with loopholes around this stuff, if you want to allow spontaneous grassroots production of political youtube videos.
(Also, one person's "political ad" is another person's "documentary", often enough; this goes in both directions.)
> Instead, educate the electorate, the first step of which is reversing Citizens United.
Citizens United is easily the most misunderstood SCOTUS case in history at this point.
Citizens United has pretty much nothing to do with educating the electorate. It is about the right of ad-hoc groups of individuals to exercise the same rights of speech that individuals and media corporations already have. Ironically, it has nothing to do with making it easier for the wealthy to influence politics, and actually makes it possible for the middle class to have influence that they would otherwise never have.
Before 2009, there was nothing stopping Michael Moore from self-funding a documentary about Bush's war crimes on advance of the election. Citizens United affirms that a group of people who, unlike Moore, aren't wealthy enough to produce an entire film individually could still pool their money together and produce that movie together. They could launch, say, an IndieGoGo campaign to produce their own version of Last Week Tonight, focused exclusively on the election.
This is almost entirely orthogonal to education of the electorate, though to be honest, it's easier to make the argument that Citizens United makes it easier to educate the electorate than the other way around.
Congratulations, you've just made part of the case for Citizens United, which coincidentally pertained to an ... unflattering movie about Hillary.
(The stronger case is of course "Congress shall make no law ... abridging the freedom of speech, or of the press....", most especially core political speech.)
That's a fair question, and not one that can be easily answered in am HN comment.
Personally, I would have had no problem with CU if it had remained the narrow decision that John Roberts originally wanted it to be. Clearly, if the First Amendment protects Michael Moore's right to make and show a politically charged film close to an election then it protects Citizens United's right to do the same thing.
The problem came when this narrow decision was extended to a broader one that included for-profit corporations and labor unions. (For-profit) corporations and labor unions are legally "persons" in that they can act as legal entities in their own right (no pun intended) independent of any individual human. And they ultimately consist of groups of humans. But they are not humans. They are human constructs. They are technology. And treating them as if they were humans, entitled to human rights, leads to problems.
So personally, I would advocate retract CU protections (and Hobby-lobby protections for that matter) from for-profit corporations.
I'd also re-instate the historical lower limits on direct contributions to political campaigns.
"2) get rid of the absurd legal doctrine established by the Citizens United decision that money=speech and hence the First Amendment applies to bribery."
Unfortunately it's not that simple. The immediate question at hand in Citizens United was about a group of private citizens being prevented from releasing a movie criticizing a Presidential candidate during an election. A movie costs money to produce and requires a large number of people to coordinate, inevitably shading over into a corporate legal structure... just like, say, a union, or a political party, or a newspaper. So how are you going to decide which corporate legal structures are making "legitimate" political speech, whatever that means, and which aren't?
Freedom of Speech does not exist to further the political ends Mr. Lipsak is sympathetic to. It is the fulfillment in Law of the Free Conscience of Man: that no man should have to answer in shackles for speaking his mind; that for his words he should fear nothing but the equally Free Judgment of his peers.
There is ample and settled case law in the US that guarantees nearly unlimited freedom of expression to individuals and activists. But for over a half-century now, the state has exerted its power over realms once ruled by the freely-entered private contract. At its best, the state can be defender of the peace, guarantor of stability, and investor in tomorrow. But at its worst, it enviously confiscates wealth, stifles innovation, and denies freedom. Who but the impartial judge is suited to arbitrate between the democratic legitimacy of the state, and the human autonomy of the individual? Between guardianship and freedom?
Criticism of the the Citizens United decision overlooks the specifics of the case, which are actually very illustrative of the danger of making exceptions to Freedom of Speech. Citizens United's violation was making a movie critical of Hillary Clinton within 1 month of a primary. A new campaign finance law prohibited private "electioneering" featuring candidates within one month of primaries and two months of general elections. The Federal Elections Commission believed that Citizens United was in violation and sought a gag order prohibiting further marketing of the film. Fast forward to the Supreme Court's decision: Citizens United won on First Amendment grounds. The under-told angle of this story is that the government had passed a law shielding itself from criticism when the freedom to criticize is most precious: leading up to an election! Picture a possible scenario if the court had ruled for the FEC: if Citizens United had refused to cease marketing the film, the FEC would have been granted a court order. If Citizens United still refused to stop spreading their film, the executive officers would have been imprisoned for contempt of court. The Supreme Court would have been foolish to abandon a great tradition of free speech and allow people to be punished for spreading a political message.
An aside: as a journalist working for a very wealthy corporation that sometimes acts more like a political campaign than a newspaper, Mr. Lipsak should know better than to so quickly dismiss the free speech of "corporations" as lesser than that of people.
> Should the MPAA be disallowed to make a political commercial and pay for its broadcast?
The MPAA has been known to make Dem-friendly movies. How do you distinguish between that and a commercial?
Note that Citizens United was about a movie, not a commercial.
Citizens United involved some folks who made a movie about Hillary Clinton.
Feel free to explain why their movie should be treated differently from one made by Mirimax.
Feel free to explain why either one should be treated differently than favorable (or unfavorable) coverage by ABC News or the New York Times.