If the government has its way, Eminem’s new single could land him in jail, Jon Stewart’s book, America, could have been banned, and advertising Michael Moore’s Fahrenheit 9/11 on television or radio would have been a felony. That’s what the government argued two weeks ago in my organization’s Supreme Court case against the Federal Election Commission, Citizens United v. FEC. In oral arguments before the nine justices of the Supreme Court, the Deputy Solicitor General of the United States asserted that the government had the constitutional authority to criminalize the production of any communication with corporate assistance (such as from a publishing house or a film studio) that advocates the election or defeat of a federal candidate near an election.
That is a stunning claim when you consider that the vast majority of film, music and books in this country is produced commercially, i.e., with corporate assistance. Effectively, the government claims that the First Amendment, contrary to popular belief, does not confer an inviolable right to speak freely about our elected officials. Instead, it is the government’s opinion that it is only by the grace and goodwill of Congress that we are permitted to commercially market books and movies that speak out for or against candidates for federal office.
Only slightly less stunning is the hypocrisy of the Hollywood left when it comes to this First Amendment case. I’m a conservative filmmaker, so I don’t usually waste much breath complaining about Hollywood. Frankly, I’m probably more comfortable without them on my side 99% of the time. The defense of the First Amendment, however, is one of the rare instances where all of our interests are aligned in a completely non-partisan fight to defend our right, as filmmakers, authors, and political activists to shoot, print, and say what we want to without government interference.
Over the last few weeks, however, the silence coming from the self-styled defenders of free speech on the left coast has been deafening. This is, after all, a group of people not known for biting their tongues and whose exorbitant paychecks are entirely dependent on the protections of the First Amendment. Remember the wailing and gnashing of teeth that occurred about “censorship” when country music fans decided not to buy overpriced tickets to Dixie Chicks concerts following their rant attacking President Bush in London? Remember how the left screamed about “McCarthyism” and “blacklisting?” What about the full-throated defense of Chris Ofili’s dung-covered portrait of the Virgin Mary in 2002? Or the idealized depiction of Larry Flynt by Woody Harrelson which was nominated for a couple of Oscars?
The Hollywood left, who are so quick to rush to the self-righteous defense of anything controversial produced by one of their own, are the same people who have largely sat on the sidelines while the government claimed the right to ban books and prohibited me from marketing my film.
You see, in 2006, before Hillary Clinton even became a candidate for president, we began production on Hillary The Movie, a documentary that chronicled Hillary Clinton’s time in the public spotlight. We released Hillary The Movie in January of 2008, but the Federal Election Commission prohibited us from advertising the film on television and radio or showing the film through cable “On Demand” services. Essentially, we were allowed to make our film and put it in as many theaters as we wanted, but we just couldn’t let anyone know it existed. Predictably, because of these regulations, the film did not quite reach Fahrenheit-like sales figures.
The McCain-Feingold law that prohibited us from airing our commercials and our film was designed to prohibit corporate funds and unlimited “soft” money from influencing elections. Despite the fact that Hillary The Movie did not expressly advocate the election or defeat of a candidate, because we even mentioned the name “Hillary Clinton” in the movie and had a minimal amount of corporate funding for the film (about .3% of the film’s budget), it would have been a criminal offense to air it on television, even in an “On Demand” format. Opponents of the McCain-Feingold law on both sides of the aisle have long said that criminalizing any kind of speech, let alone political speech, is a very slippery slope that should be approached with extreme caution. The Founding Fathers, and James Madison in particular, wrote the First Amendment fearing this type of government action.
The oral arguments at the Supreme Court proved us right. In Citizens United v. Federal Election Commission, the Deputy Solicitor General of the United States of America asserted that the U.S. Constitution would allow the government to ban commercially published books that contain the phrase “Vote for Candidate X” close to an election!
This admission caused the nine black robes to flutter. Again and again, your government emphatically asserted the Constitution permits it to ban the commercial publication and marketing of a book and to throw that publisher in jail for up to five years if the book includes a single phrase that expressly advocates for the election or defeat of a federal candidate. This is precisely the kind of government encroachment that the First Amendment is suppose to protect us against. What comes next? Banning activists from holding signs at protests in front of the White House that mention a President who is up for re-election? Unbelievably, the government lawyer claimed that they could ban that too if the sign was funded by a corporation.
A slippery slope indeed.
Hollywood liberals are so blinded by the fact that this fight happens to revolve around a film critical of a liberal Democrat that they are staying on the sidelines of a fight that has a direct impact on their livelihoods. This law that we’re fighting against criminalizes the broadcast of certain films. What happens when Sean Penn decides that he wants to make a film about Barack Obama to be released in early 2012? It would be a criminal offence to advertise it. What happens when Susan Sarandon wants to air a documentary critical of Governor Palin just before the next presidential primaries? Five years in jail if Palin is in the race.
I may not agree with what the Hollywood left has to say, but I promise you that I will always fight for their right to say it. The First Amendment is important enough that all of us need to rise above our political differences and work together to ensure that the government doesn’t go any further than it already has in restricting our fundamental freedom to speak out for or against our elected leaders. Like Speaker Pelosi’s documentarian daughter, Alexandra, told Variety, “As a viewer, I wouldn’t want to watch this movie. And I wouldn’t want anyone to make a movie like this about anyone I know, but … liberals have been making documentaries for a long time and now that conservatives are doing it, we are all offended?”
Citizens United and I have been in the fight for years and we’ll still be here when the government decides to try to censor one of Michael Moore’s films or ban Eminem’s music. I just wish I could say the same for liberals in Hollywood who prosper under the First Amendment’s protections but can’t be bothered to stand up for it unless it’s one of their own being threatened.