This Friday, “13 Hours: The Secret Soldiers of Benghazi” will be released in theaters nationwide. The movie, based on the book “13 Hours” by Mitchell Zuckoff, is directed by Michael Bay and gives the public a chance to see one man’s take on what happened in Libya on September 11, 2012, when terrorists stormed our diplomatic compound and killed four Americans: Glen Doherty, Sean Smith, Ambassador Chris Stevens, and Tyrone Woods.
The decision to make this movie and release it so widely was likely unpopular with the Democratic political establishment. While the film focuses on the events on the ground in Benghazi, it is bound to generate interest about what was happening back in Washington and what President Obama and his secretary of State, Hillary Clinton, might have done to prevent the loss of American lives.
Certainly, it will add publicity to one of the Obama administration’s most public foreign policy debacles. For the first time in years, Hollywood is putting out a picture that might do some harm to the Democratic Party.
No Free Speech Before an Election
Thanks to our First Amendment, there is nothing the Obama administration can do about it. Government may not censor films about current events, politics, or any other subject even if they might affect an election. Indeed, they may not be censored even if they are designed to affect an election.
That seems obvious to anyone with even a passing knowledge of our First Amendment, but the Supreme Court did not firmly decide this principle until 2009. That year, in a 5-4 decision, the court overturned a law in which Congress had granted the administration the power to censor just such a film. By one vote in Citizens United v. FEC, the Supreme Court struck down the government’s power to censor films or other publications intended to influence elections.
In that case, the Federal Election Commission sought to uphold their power under the Bipartisan Campaign Reform Act of 2002 (BCRA) to limit communications close to the time of an election. Specifically, the FEC wanted the Supreme Court to turn back a challenge to their right to bar a group, Citizens United, from putting a film, “Hillary: The Movie,” and all advertising for it on the airwaves until after the 2008 election.
The FEC believed it had the unprecedented power to censor the airwaves based on a BCRA provision that barred corporations or labor unions from spending money on “electioneering communications” (i.e., advertisements mentioning a candidate by name) for 60 days before a general election.
Documentaries for the Left, But Not the Right
Stretching “electioneering communications” to cover documentary films was not uncontroversial. Before the 2004 election, Citizens United had complained to the FEC that Michael Moore’s film “Fahrenheit 9/11” was just such a communication and, as it was released by a corporation rather than a campaign, it violated BCRA. They wanted Moore’s film (which he admitted he hoped would influence the 2004 election) shut down. The FEC declined to do so, holding that “the film, associated trailers and website represented bona fide commercial activity, not ‘contributions’ or ‘expenditures’”
Figuring that if you can’t beat ‘em, join ‘em, Citizens United, a nonprofit corporation, started producing conservative documentary films in 2005. When they released “Hillary: The Movie” on DirectTV in 2008, they sought assurance that the standard the FEC had applied to Moore’s film in 2004 would apply equally to theirs. They asked the district court in Washington DC to declare that the relevant section of BCRA would be unconstitutional as applied to their film, and for an injunction preventing the FEC from so enforcing it.
The district court saw things differently, and ordered summary judgment in the FEC’s favor, because the purpose of the film could only be “to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world, and that viewers should vote against her.”
At the oral argument on appeal, the Supreme Court justices probed the limits of the power the government claimed for itself, and questioned how it squared with the First Amendment. In one incredible back-and-forth, Chief Justice John Roberts asked Deputy Solicitor General Malcolm Stewart if there was “a 500-page book, and at the end it says, and so vote for X, the government could ban that?” Stewart’s response: yes.
“Well,” he explains, “if it says vote for X, it would be express advocacy and it would be covered by the pre-existing Federal Election Campaign Act provision.” In the name of campaign finance reform, the United States government argued it could ban books.
Citizens United Wasn’t Really about Corporations as People
If you hadn’t heard this before, it is likely because Citizens United has been presented in the popular media as a case about the rights of corporations. Maybe in 2010, when the case was decided, you saw some opinion piece forwarded around Facebook that said “Today, the Supreme Court said corporations are people.” Certainly, you’ve heard talking points from Democratic politicians about the need to overturn Citizens United because of the dangerous new powers the court bestowed on Big Business.
In their lie, there is a kernel of truth. There was a corporation involved in the case: Citizens United, which claimed its film was protected speech under the First Amendment. But this is nothing new. As early as 1936, the Supreme Court had held that newspapers, although they were corporations, were entitled to the protection of the First Amendment (that case, Grosjean v. American Press Co., also involved a Democratic administration trying to silence unfavorable coverage).
The principle was reaffirmed many times since then. Much of the unfavorable coverage of the court’s decision was carried in media outlets owned by for-profit corporations. Many were newspapers that, like Citizens United, make explicit endorsements of candidates before every election and do so under the protection of the First Amendment.
Disenfranchising the Little Guys
Imagine a world where the Supreme Court had ruled the opposite way in Citizens United. BCRA’s prohibition on corporations and unions spending money on electioneering communications would stand. But that would not likely be the end of it. Barred from speaking about politics at election time, corporations and unions would just have shifted their spending to political action committees (PACs), as many already do. Contribution limits to PACs would reduce their ability to publish their ideas to a wide audience, but there would still be campaign ads and films about candidates.
Further, nothing in BCRA could prevent a rich individual from buying ads or distributing movies that seek to influence elections. Donald Trump and Hillary Clinton could afford to run ads, as could rich donors from both parties. Corporations and unions could still run “issue ads,” which inform the public but do not mention a candidate by name. Middle-class people who wanted to start an organization to pool their capital to compete would be barred from doing so.
Surely the Democratic Congress elected in 2009 would not have let this stand. With the ability to censor corporate and union speech now embedded in case law, there would have been nothing stopping them from barring all corporate communication about election issues. Indeed, at oral arguments, Stewart suggested the definition of “express advocacy” could be drawn fairly widely:
if the … narrator had said in the first 30 seconds of the film: A Hillary Clinton presidency would pose a danger to the country, it’s important for all citizens to vote against Hillary Clinton, what follows are extended analyses of episodes in her past that reflect Hillary Clinton’s unsuitability for that office. And if then in the last 89 minutes of the film the film-maker had made no overt reference to the upcoming election but had simply given a negative portrayal of Hillary Clinton, the person, that would be express advocacy that would be proscribable even without regard to BCRA.
‘13 Hours’ Would Have Been Under Scrutiny
This brings us back to “13 Hours.” The film, distributed by Paramount Pictures (a for-profit corporation), by all accounts does not expressly advocate an opinion about Clinton or suggest that she is unfit for office. But the Obama administration’s opinion of its power under BCRA is so broad, it is not a great leap to suppose they would think any communication of important issues related to a candidate would constitute electioneering.
Would a Congress with the power to prohibit some corporate speech continue to allow other corporate speech based on the simple expedient the speaker of not expressly advocating for or against an individual candidate? Without Citizens United, nothing would stop them from further restricting the marketplace of political ideas.
Whether they would or not, the Supreme Court agreed with the drafters of the First Amendment that Congress cannot be trusted to make that decision. The Bill of Rights was the first Congress’s way of limiting itself, reassuring the people of the new republic that the federal government would not ever be granted the power to take away those natural rights that are the birthright of a free people.
By a 5-4 vote, those rights were upheld for another generation. If you choose to watch “13 Hours” this weekend, remember Citizens United, and how close we came to losing the right to make that choice.