February 18, 2008

"How can you advertise this movie without mentioning the name 'Hillary'?"

The far reaching effect of the McCain-Feingold Act.
A three-judge panel ruled that the movie itself ["Hillary: The Movie"] is akin to a campaign ad and cannot be broadcast on television. It tells "the electorate that Sen. Clinton is unfit for office . . . and that viewers should vote against her," they said. However, they said that brief ads for the film could be broadcast because "they proposed a commercial transaction -- buy the DVD of The Movie."
If it were otherwise, you could make a movie solely for the purpose of creating a loophole to the act. My first take on this — convince me I'm wrong! — is that is that if you don't have a First Amendment right to run an ad against the candidate when it's not embedded an ad for a movie, it shouldn't be possible to manufacture a special right by making a movie and advertising it with essentially the same anti-candidate statements. Of course, since anybody can throw together a movie these days, if you hate the act, you should love the loophole — which anyone with a digital camera and a computer can get into. Right?

50 comments:

Donald Douglas said...

Irony here: If Hillary can't run the movie (ads), disadvantaging her in competitive upcoming primaries, and thus helping Obama to win the Democratic nomination, McCain - the sponsor of the legislation - will face a candidate some say is better able to defeat him in the general.

You've got to love it!!

American Power

Palladian said...

"Irony here: If Hillary can't run the movie (ads), disadvantaging her in competitive upcoming primaries, and thus helping Obama to win the Democratic nomination, McCain - the sponsor of the legislation - will face a candidate some say is better able to defeat him in the general."

You misread the article. The movie tells "the electorate that Sen. Clinton is unfit for office . . . and that viewers should vote against her". In this case McCain-Feingold is working (at least partially) to her advantage.

But what a wonderful reminder of one of the reasons not to vote for McCain. McCain-Feingold must be the biggest blow to the 1st Amendment in the modern history of the Republic, no?

Slim999 said...

Irony here:

This used to be America, where you had the right to say a politician was unfit for office.

It was called the First Amendment to the Constitution, which is now worthless, thanks in large part to Republican John McCain.

Anyone who votes for McCain is a traitor to his country.

Roost on the Moon said...

The commercial transaction is what does it? That seems like a mile-wide loophole. Why even bother making a movie? Why not just sell some 2-cent piece of political schwag for $50? Nobody buys it, you don't even need to stock more than one box...

Ralph said...

So commercial speech gets more protection than political speech. Another good reason to hate McCain (and the Congress and the Courts). Disclosure is a good thing, however.

The article isn't entirely clear about the law: could Bossie broadcast the entire movie if he were using his own funds, not his non-profit's?

Middle Class Guy said...
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Middle Class Guy said...
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rhhardin said...

I'm surprised nobody just puts out an ad regardless, just to needle the courts on the matter.

Where is the left? It's their specialty.

Middle Class Guy said...

Slim999 said...
It was called the First Amendment to the Constitution, which is now worthless, thanks in large part to Republican John McCain.


The act is called McCain-Feingold.

Just to be fair, old Russ is just as much at fault.

Original Mike said...

More irony: Not voting for McCain because of McCain-Feingold (which, I admit, is mighty tempting) is likely to get you more, not fewer, judges that think McCain-Feingold is just dandy.

Donald Douglas said...

Palladian: Thanks for the correction...too excited about McCain I guess (and you guys over here are always too smart for me!).

There's still irony of course, it's just working the other way. McCain could be regretting his alleged anti-free speech apostasies.

Now, tell me more about why McCain not to vote for McCain. It's not campaign finance.

From Michael Medved:

"McCain-Feingold was a piece of useless, misguided legislation but it’s done no serious damage to the country, the constitution or the conservative pro-life cause. After nearly seven years on the books, robust and impassioned discussion of political issues and candidates is more vibrant and free-wheeling than ever."

Does your antipathy run deeper than this?

American Power

Simon said...

I think that if one grants the premise, that's exactly right. I'd dispute the premise, but I don't think that's the debate you want to see in this thread. ;)

Simon said...

Slim999, I take it you're in favor of throwing the baby out with the bathwater.

john said...

Simon,

When it's Rosemary's baby, I say give it old the heave ho.

Donald Douglas said...

Simon: Why not? Too many attorneys over here?

Why don't you examine the premise, if that's the Medved thesis you're questioning?

Let's see where this thread (threat) goes (sounds ominous)...

American Power

Pogo said...

By here favoring commercial over political speech, McCain Feingold ends up causing a tax on speech. To be able to speak about politics, one must have the wherewithall to create a dummy corporation with no intent to profit, but to make "commercials" that are really political ads.

It's bullshit. Most people want to say what they want to say about whom they want when they want, especially about politics. This kind of regulatory nonsense foments disgust for the law and for lawyers, as well as for politicians, revealing their game as one of endless command and control, favoring the elite class that knows how to just skirt the law.

As i say, bullshit. We have no right to free speech. Not anymore.

rhhardin said...

Maybe you could publish your ad in Canada, and aim it at the border.

An Edjamikated Redneck said...

We have no right to free speech. Not anymore.

I have to disagree. We still have a right to free speech- just not when it matters, either in timing or subject matter.

Mortimer Brezny said...

My first take on this — convince me I'm wrong! — is that is that if you don't have a First Amendment right to run an ad against the candidate when it's not embedded an ad for a movie, it shouldn't be possible to manufacture a special right by making a movie and advertising it with essentially the same anti-candidate statements.

1. Simon is right that you do have a First Amendment right to criticize politicians, no matter what McCain-Feingold says.

2. Movies are art. Satire and parody are art. Artistic expression about, satire of, parody of candidates is different than pure political speech. Mocking Hillary is not the same are saying "Don't vote for her on the issues." If they ran the movie without a soundtrack, it should be outside of the coverage of the act, as it isn't speech.

Zeb Quinn said...

Bush, and maybe even McCain himself, probably thought that the Supreme Court would take care of this POS law. It's an obvious impairment to political speech. It was just political posturing. The votes on the court broke down like this:

Stevens, O'Connor, Souter, Ginsburg and Breyer voted to uphold the law, and Rehnquist, Scalia, Thomas, and Kennedy voted against it (Kennedy for the most part).

As now constituted, subtracting O'Connor and Rehnquist and adding Roberts and Alito, it seems to go from a 5-4 vote to uphold to a 5-4 vote the other way. If it were to return to them and if "nonactivist" judges would vote to reverse itself that soon.

Paddy O. said...

I still feel free as ever with my speech.

This always sounds like the Republican version of "Worst President ever" argument, which is a lot more about hyperbole and historical ignorance than real substantive argument.

We're all still talking politics here. Free speech still reigns. Loopholes abound. Hooray!!

Though, it does seem touch on the idea that some people's speech is more equal than others. But this has always been the case really. It just changes which people are the more equal and the more free than free.

Donald Douglas said...

Zeb argues: "It's an obvious impairment to political speech."

Not de facto. There's more campaign speech post-McCain-Feingold than ever. Power flowed from the national party orgs to 527 groups and beyond.

I think it's a principled attack, of course, to say McCain's stuck in thumb in the eyes of First Amendment jihadis, but the effects have been mild in practice.

What's more interesting, frankly, is the hints of MDS earlier in the thread. It's so pre-Potomac primaries.

American Power

hdhouse said...

Palladian said...
"McCain-Feingold must be the biggest blow to the 1st Amendment in the modern history of the Republic, no?"

No.

Simon said...

Donald, my point would be that if you vote against McCain because he doesn't have a very high opinion of one clause of the Constitution in an election where your vote helps a candidate who views the entire document with thinly-disguised contempt, you are making a serious blunder. I think McCain is dead wrong on the First Amendment, but whatever damage he might do to that one clause is outweighed a million times by the damage that either Obama or Clinton could do, across the board. A fortiori since, if anything, they're even worse on the first amendment! I think slim's comment's absolutely batshit crazy, frankly - it's in total denial of reality. It's throwing out the baby with the bathwater. It's cutting off your face to spite your face. It's killing yourself because you're afraid of being killed. It's nuts.

Zeb Quinn said...
"As now constituted, subtracting O'Connor and Rehnquist and adding Roberts and Alito, it seems to go from a 5-4 vote to uphold to a 5-4 vote the other way."

Likely, but not certain. In WRTL, Alito seemed to telegraph his willingness to overrule McConnell, and Scalia and Thomas said it outright, but it's hard to get a feel for Roberts' views on stare decisis from cases thusfar.

Pogo said...

I still feel free as ever with my speech.


But you're not, else these three judge panels would not need to rule at all. They'd simply say "bullshit" and call these attempts at restraint a First Amendment violation.


It ends up creating a speech tax. You pay, then you can say.

hdhouse said...

ohhh this one is marvelous.....

Slim999 said...
"This used to be America, where you had the right to say a politician was unfit for office."

You still do Slim.

"It was called the First Amendment to the Constitution, which is now worthless, thanks in large part to Republican John McCain."

Still is the 1st amendment Slim.

"Anyone who votes for McCain is a traitor to his country."

Well since anyone who votes for McCain, by default, must be an American as McCain isn't on the ballot in another country.

Slim (are you "none"'s brother?) don't get caught up in people like Mush Lowbrow telling you what they think you lost. You didn't loose a thing. No one has. The subject is the "way around". You can pony up the money to make a commercial or, in this case, a movie (Windows XP has movie maker...knock yourself out) and the loophole has been found like we knew it would...

go for it...Robert Altman died and we need someone to carry the torch.

Roger said...

Last I looked, heated rhetoric nothwithstanding, this is a pretty free country--some guy can argue face to face with an ex-president and not get disappeared. We can all put our opinions out here and, to my knowledge, the black helicopters havent showed up. The constitution is really not shredded. Federalism still operates, the democrats control congress (kind of) and a republican is in the white house.

McCain-Feingold does nibble a bit around the edges of speech by imposing some limits on political speech late in campaigns, but all in all--the republic is in good shape. Full disclosure: I am not one who takes the slippery slope argument too seriously.

Original Mike said...

Palladian said...
"McCain-Feingold must be the biggest blow to the 1st Amendment in the modern history of the Republic, no?"

Yes.

As Jeff Probst would say: "Two votes yes, one vote no."

Paddy O. said...

You pay, then you can say.

How is this different? Except who you pay. Someone with more money has always had more free speech than someone without money. With the internet over the last ten years there has been an unprecedented explosion of free speech, more so than even in the earliest days of the Republic.

We've more free speech now than ever before. Just apparently a little less in certain ways. But I have never once encountered those barriers myself, being a mostly poor fellow, so my speech is just as free, more free, than ever before.

The money is all still there. It just goes in different directions now to get speech heard, and is momentarily inconveniencing.

But, given the political climate of the last years since McCain-Feingold and all the political back and forth that has almost paralyzed the political system, it's odd to think there isn't free speech anymore or that it's been crushed. It's crushing really, there's so much of it flying around. Nobodies get their say and politicians think they have to listen.

Original Mike said...

Someone with more money has always had more free speech than someone without money.

Yeah, that the CW, but I don't buy it. Take environmentalism as an example. The CW argument is that people who "want to pollute" (i.e. business) can afford to support candidates who support pollution (whoever they are), but those who oppose pollution can't afford to promote the green candidate. But that, of course, is not true. Or, at least, it didn't use to be. The Sierra Club, to name just one organization, collects large sums of money from the environmentally-concerned, bundles it into ad buys, and runs ads for the candidate they support. Only now, they can't run those ads without the approval of a government agency. How is the need to get government approval to discuss your political opponent not antithetical to freedom of speech?

Pogo said...

We've more free speech now than ever before.

I would agree, but I can think of no reason, not one, to support a bill that delimits my ability to engage in certain kinds of speech regarding politicians.

Having to run it by a 3 judge panel is anti-speech. It doesn't matter one whit that the internet bypasses that prohibition; the two things are unrelated.

That the rule is there at all is stupid and unconstitutional. It's anticonstitutional.

former law student said...

These laws puzzle me. I remember when Reagan was President, they couldn't show "Bedtime for Bonzo" on the teevee, or even King's Row. But then when Newt Gingrich was taking out a Contract on America, the Jesus station by me was running round-the-clock ads for the anti-Clinton "Clinton Chronicles" movie. When did McCain-Feingold take effect? And what really happened to Vince Foster, and why? Did Trooper York have to help find hookups for Bill? Etc.

Trooper York said...

Thorny: It stinks like sex in here.
Thorny: Who wants a moustache ride?
German Woman: I do, I do!
German Man: Oooh, I vant von too!
(Super Troopers, 2001)

Slim999 said...

"... if you vote against McCain because he doesn't have a very high opinion of one clause of the Constitution in an election where your vote helps a candidate who views the entire document with thinly-disguised contempt, you are making a serious blunder."

It is in this way that Constitutions are shredded.

One right at a time.

If you can't put your foot down for the right of speech, you lose me right there.

What other right has more meaning?

But while we're at it, let's count the OTHER rights we've been stripped of:

* 5th Amendment protections on the right not to incriminate yourself (DWI laws)

* 2nd Amendment protections on gun ownership (DC handgun ban)

* 5th Amendment protections on property rights (Kelo)

You guys who argue that ... well, it's only one right that McCain is against, so you should vote for him to retain your other rights are idiots.

McCain is a traitor to the Constitution he swore an oath to protect and defend.

Fuck him. He doesn't get my money, or my vote. I will vote AGAINST him and for ANYBODY else who hasn't fucked the country over yet.

Ralph said...

Someone with more money has always had more free speech than someone without money.
Someone who makes money from speech (professional journalist) is completely free, as I understand it. That's why the MSM kept pushing M-F, to try to get their information monopoly back.

Simon, it does look like another crappy "less of two evils" election. No wonder there are so many Obamasms on the left.

Middle Class Guy said...

Slim999 said...
5th Amendment protections on the right not to incriminate yourself (DWI laws)



OK, tell me how DUI laws violate the Fifth Amendment?

Pogo said...

OK, tell me how DUI laws violate the Fifth Amendment?

In MN, you are automatically guilty if you refuse to do a breath test or give blood.

You will comply.
You will assimilate.
You have the right to remain silent, but you will bleed for them, or else you are convicted.

former law student said...

OK, tell me how DUI laws violate the Fifth Amendment?

In MN, you are automatically guilty if you refuse to do a breath test or give blood.

You will comply.
You will assimilate.
You have the right to remain silent, but you will bleed for them, or else you are convicted.


DUI laws don't require you to incriminate yourselves, any more than being fingerprinted or photographed does. You are not being compelled to either answer questions or testify to things that may tend to incriminate you.

But, the DUI laws may violate your Fourth Amendment rights, because they are an invasive warrantless search. But, warrantless searches are allowed if you gave consent to them. Plus the police officer is acting on reasonable suspicion if not probable cause (a stop for erratic driving leads to observation of a smell of alcohol, slurred speech, etc.) So, if "implied consent" law is valid in your state, you have consented to giving a sample of your body fluids.

Steven said...

Former Law Student:

The rule that zapped Bonzo and which is still in place is that the owner of a broadcast station must match any unpaid election-time broadcast of a candidate with equal time for the competing candidates, upon their request. Paid ads — like for the Clinton Chronicles — merely require that time be available for sale on an equal basis for all candidates. That's technically structured as a requirement of a broadcast license, and is based on the "public airwaves" doctrine. The old "Fairness Doctrine", which required that any sort of political commentary be matched with equal time, was part of that same general approach of requiring equal access to public airwaves.

McCain-Feingold, on the other hand, regulates the permissible content of paid advertisements during designated campaign periods, instead of merely requiring equal access to public airwaves.

Simon said...

Slim: So your answer to the slippery slope is just to jump directly to the bottom, right? Your answer to the problem that rights can be shredded one right at a time - surely correct - is to force the whole shebang into the shredder? This is insanity. There isn't a single amendment to the Constitution I wouldn't throw under the bus in a heartbeat if the alternative is the wholesale liquidation of the entire instrument. With the single exception of the Seventeenth Amendment, I love our Constitution and all its amendments dearly, but a misguided attempt to rescue one limb - no matter how important it is - isn't worth the price of losing the whole thing, especially when you won't actually save the limb in the process. And that's even assume that the limb is actually at serious risk, which is an argument I'll leave to others. What you must come to realize - and realize fast - is that the election this fall isn't (as you pose it) a choice between voting for McCain or voting for some ideal candidate, it's the dilemma posed at the end of the first "Mad Max" movie:

"[the Kid is handcuffed to a car that's about to explode]
Max: The chain in those handcuffs is high-tensile steel. It'd take you ten minutes to hack through it with this. Now, if you're lucky, you could hack through your ankle in five minutes. Go.
"

Your options this fall are to act like a grown-up and cast a painful vote for McCain, or doom us to eight years of Hillary/Obama and the decades-long reconstitution of a liberal majority on the Supreme Court, which, having been liberated from Lochnerphobia, will make the Warren Court look like a prelude. Go.

Slim999 said...

Simon:

I think it was a Bostonian who once said: "Why, it's only a small tax on tea. What's the fuss?"

Prudence, however, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience has shown that men are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.

But when a long train of abuses pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.

I will sir, not buy the argument that I should vote for the man who ripped asunder the First Amendment to the Constitution because of some nebulous fear - promulgated by that very man - that others than him might do worse.

I intend to right myself, sir. McCain will not get my vote. Whoever runs against him will.

If they then undertake his banner and extend his errors, I will fight them too if necessary.

Simon said...

In other words, you're going to sit by the car crying about how much it'd hurt to saw through your ankle. We infer from the end of "Mad Max" that the kid made the same choice, and it blew up in his face, too.

This is not the grand arena; you aren't the plucky hero; and John McCain is not George III. If you vote against the GOP nominee, and you make yourself the ally of the American liberal - a "useful idiot" as Lenin would say - and contribute not only to far worse damage to the First Amendment than would take place under McCain, but to far worse damage to the Constitution as a whole. On your head be it.

Slim999 said...

Simon:

I don't really base my political instincts on poorly-directed 20-year-old Mel Gibson movies. But since you brought it up, I'll tell you the other reasons McCain doesn't deserve your vote.

McCain has a voting history, and a political history. I am aware of it. You may also be.

Here, for example, is a man who involved his own children in a thinly-veiled campaign cash bribery scheme. His own kids! Would you involve your own children with a slimeball like Charles Keating?

John McCain did. Is he a hero?

John McCain was in the Navy, the son of the Commander In Chief of the Pacific Fleet. Those family ties served him well when he crashed his jet and was captured by the North Vietnamese. He was released. Many were not.

McCain lost another jet too, on the USS Forrestal, when one of his buddies fired a rocket into it while it sat on the deck. Here's what he told the NY Times afterward: "Now that I've seen what the bombs and the napalm did to the people on our ship, I'm not so sure that I want to drop any more of that stuff on North Vietnam."

McCain later made propoganda films for the North Vietnamese and signed a confession. Many of his fellow prisoners did not. But John McCain did.

He did so after being repeatedly tortured, I am told. He also did so after telling the NY Times he didn't want to drop any more bombs on the North Vietnamese.

Hero? To many he is. I will not argue the point. But some don't see it that way. And, unlike John McCain, I think people have the right to express that opinion about him whether he likes it or not. Says so right there in the Constitution.

John McCain swore an oath when he joined the Navy. In it, he promised to "defend the Constitution of the United States against all enemies, foreign and domestic."

You see, the oath assumes that even Americans might try to dismantle the Constitution. We are all duty bound to stop them. I intend to exercise my duty.

And so here we are, the John McCain I have come to know, with his friend Russ Feingold, to tell Americans they cannot criticize their government 60 days before an election.

Hero?

When John McCain was elected to the United States Senate, he took an oath, sir.

In it, he promised to "support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion."

John McCain is a traitor to those Constitutional values. He has been purposely evasive and failed to bear true faith and allegiance to it.

Would some other candidate be a WORSE traitor? You certainly make an argument that it would be so. And you might be right.

But one thing we know for sure. McCain is ALREADY a traitor to the Constitution.

So, I will right myself, sir, and vote for whoever is nominated to run against him. If he is elected, I will not support him. When he is gone, the country will perhaps find its way back to a time when the word of men meant something.

MarkW said...

McCain-Feingold does nibble a bit around the edges of speech by imposing some limits on political speech late in campaigns...

But political speech late in campaigns is the most important, and should have the highest levels of protection -- not the most restrictions. AARRRGG.

David said...

How the hell did we get to the point where three judge panels are deciding what can be broadcast on television?

What a mess.

MadisonMan said...

McCain lost another jet too, on the USS Forrestal, when one of his buddies fired a rocket into it while it sat on the deck. Here's what he told the NY Times afterward: "Now that I've seen what the bombs and the napalm did to the people on our ship, I'm not so sure that I want to drop any more of that stuff on North Vietnam."

You apparently missed the discussion on this last week, complete with video from 1966(!!) showing the hellish conflagration. For completeness, you should add that McCain was sitting inside the jet when the missile hit it. And the quote notwithstanding, he went back to serve with distinction before being shot down.

Otherwise, you've done a nifty job of twisting the facts to justify your opinion.

MadisonMan said...

Sorry -- 1967.

Slim999 said...

Madison man:

Exactly which facts have been "twisted?" I merely recited that which you can read for yourself over at Wikipedia or any number of other historical records.

What is frightening to me is that John McCain believes that you don't have a right to express your opinion about him 60 days before an election, and he's been instrumental in dismantling the First Amendment to ensure that you can't.

He took campaign bribes from Charles Keating, then went to bat for him when the slimebag stole from investors and destroyed hundreds of Savings and Loans in the process, costing US taxpayers $200 billion, but not costing John McCain anything.

McCain was rebuked by his fellow Senators. He involved his kids in the kickbacks. I mean, what kind of father involves his own children in an influence-for-cash scandal?

Is he a hero? Many don't believe so, but thanks to John McCain, it's illegal to say so.

Because he gutted the First Amendment. Some hero!

MadisonMan said...

Ooooh, if it's wikipedia it must be correct.

I was only clarifying part of your diatribe against McCain. You can rant all you want, I just ask that you be accurate. For example, I'm certain that people will actually be expressing their opinions about McCain within 60 days of the election, despite your assertion that you cannot. If I am wrong, I will genuinely enjoy 60 days of silence from you, a law blog commentator, starting 6 September 2008.

FSXploration said...
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