Looming large in this conversation is a Supreme Court case motivated by a documentary film. The Citizens United Supreme Court case, which began as a case about the right to air (on Direct TV and VOD) and advertise (on television) Citizen United's documentary, "Hillary," which encouraged people to find Hillary Clinton an unfit choice for President of the United States.
In a fascinating Supreme Court case, which had representatives from President Obama's Office of the Solicitor General's Office playing hot potato with the case once the Roberts Supreme Court made it clear that they would take the opportunity of this case to expand campaign finance laws to give corporations, under the guise of Political Action Committees, the same rights as people when it comes to campaign contributions.
Citizens United had previously lobbied the SEC to find broadcast of advertisements of Michael Moore's "Fahrenheit 9/11" illegal under the same rules that "Hillary" was not found to be violating.
As then Solicitor General, current Supreme Court justice Elena Kagan made clear, the Deputy Solicitor General Malcolm Stewart had made a misstep when he outlined what interests the government had in expanding the government's right to limit free political speech. From Jeffrey Toobin's wise and forceful narrative of the Citizens United case in the New Yorker:
Since McCain-Feingold forbade the broadcast of “electronic communications” shortly before elections, this was a case about movies and television commercials. What else might the law regulate? “Do you think the Constitution required Congress to draw the line where it did, limiting this to broadcast and cable and so forth?” Alito said. Could the law limit a corporation from “providing the same thing in a book? Would the Constitution permit the restriction of all those as well?”
Yes, Stewart said: “Those could have been applied to additional media as well.”
The Justices leaned forward. It was one thing for the government to regulate television commercials. That had been done for years. But a book? Could the government regulate the content of a book?
As Toobin recounts it, in the re-hearing of the Citizens United case, in which Roberts was the architect for a larger scope for the case, Kagan has the burden of going back on Stewart's words. But the damage, cleverly exploited by Roberts, was done.
The interpretation of a political documentary that took one individual politician up for political office to task had been made by the FEC. Going against the decision earlier made to dismiss Citizen United's claim against "Fahrenheit 9/11," the willingness to challenge "Hillary" came from a position that accords great persuasive power to political documentaries screened on satellite TV, distributed via VOD, and advertised on television (i.e. political documentary on demand).
In retrospect, of course, the government's case gave too much credit to the political persuasive or propagandistic power of a film screening on Direct TV and on VOD, advertised on cable. The John Kerry smear campaign "Unfit for Command" was not the nail in Kerry's coffin, just as "Obama 2016," popular as it may be, has not destroyed our President. What makes it worse, though, is that this misreading of the political communication -- and digital distribution -- landscape was exploited by Justice Roberts to provide some of the most controversial campaign finance reform to date.