Closing the 'Michael Moore Loophole?'

A few years back, I interviewed Michael Moore and asked him if Fahrenheit 9/11 should be considered a political advertisement, and if so, whether campaign finance laws should apply. Moore admitted the film contained his opinions, but that his film should be treated like an op-ed in the paper.

During the 2004 election, neither ads for the Bush-bashing Fahrenheit 9/11, nor the film itself were regulated under campaign finance laws.

But now that there’s a new film about Hillary Clinton, all of a sudden, campaign finance laws do apply to political perspective films:

The early reviews are in, and three federal judges appeared in agreement Wednesday that a movie lambasting Hillary Clinton seemed an awful lot like a 90-minute campaign advertisement.

Citizens United, a conservative advocacy group, is challenging the nation’s campaign finance laws, which require disclaimers on political advertisements and restrict when they can be broadcast. The group argues “Hillary: The Movie” and related television advertisements are not political advertising even though the New York senator is in the presidential race.

Attorney James Bopp argued that they should be considered “issue-oriented” speech because viewers aren’t urged to vote for or against the Democrat.

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The movie is scheduled for two screenings in theaters, once each in California and Washington. It is also being sold on DVD. Neither of those methods are regulated under campaign laws. The advertisements, however, are scheduled to run during the peak presidential primary season and would be regulated.

Bopp, who successfully led a challenge to one aspect of the campaign finance system last year, compared the film to television news programs “Frontline,” “Nova,” and “60 Minutes.” That prompted Lamberth to laugh out loud from the bench.

“You can’t compare this to ‘60 Minutes,’” the judge said. “Did you read this transcript?”

The movie features commentary from conservative pundits, some of whom specifically say Clinton is not fit to be the nation’s commander in chief.

The content of the film is irrelevant; if the film merely expresses opinions, it is protected constitutional speech. And if it is factually inaccurate in a way that is defamatory to Hillary Clinton, she has legal recourse for that.

It shouldn’t matter whether a film is made by a Hollywood insider like Michael Moore or an issue-based outfit like Citizens United. Groups like Citizens United—on the right and the left—are formed by private citizens with a common goal of promoting their shared ideas. The speech of Citizens United should not be more regulated than the speech of any of its individual members—or any other private citizen for that matter.

All filmmakers—in fact, all citizens who value their free speech rights—should be concerned about this decision. Michael Moore should be concerned. Because even though he has the benefit of Hollywood’s infrastructure and support (and therefore has no need to become involved with an organization like Citizens United), his films are financed and distributed by corporations that may one day find themselves subject to the same regulations now being imposed on Citizens United.

Any attempt to regulate political speech is direct assault on the First Amendment.