During the 2004 presidential campaign, Michael Moore promoted the film , Fahrenheit 9/11 , which was critical of the Bush presidency and which expressly urged the removal of Bush from the presidency. The film was released, promoted, distributed, and shown using funds supplied by Moore and other entities, all of which had made contributions to a series of political candidates of a clearly identifiable political persuasion. A conservative nonprofit political group named Citizens United, also with a clearly identifiable political agenda, filed a complaint with the Federal Election Commission asking that the film be censored under provisions of the Bipartisan Campaign Reform Act of 2002. The federal reform law, which is popularly known as the McCain-Feingold Act, forbids all “electioneering communications” by all unions, and by all profit and nonprofit corporations, 60 days before an election and 30 days before a primary. The McCain-Feingold law did allow some political advertisements during that same period of time, just as long as those advertisements were funded by the candidate’s campaign. For clarity, McCain-Feingold defined “electioneering communications”
as speech that is intended to promote a candidate’s election or, in the alternative, the defeat of a candidate. In response to the complaint, the Federal Election Commission ruled that the activities of Moore and his associates in the release, promotion, distribution, and showing of the film had not in any way violated the law. The commission decided that the money spent on the promotion and release of the film including the film’s Web site and trailers were, in fact, simply commercial activities and not political speech as defined within the act.
As a result, the complaint was dismissed. (It is interesting to note that at this point neither Citizens United nor the Federal Election Commission had presented any arguments regarding the law’s constitutionality. That was about to change.)
Taking its cue from this decision, in the 2008 election campaign, Citizens United fought back by producing its own film entitled Hillary: The Movie . The film, which was admittedly critical of Senator Hillary Clinton, was scheduled to be promoted in television commercials and ultimately broadcast on Direct TV.
As a preemptive strike, Citizens United brought an action in Federal District Court, arguing that McCain-Feingold, at least to the extent that it might be applied to Hillary: The Movie, was unconstitutional and asking for an injunction to prevent the Federal Election Commission from using the law to interfere with the promotion and presentation of the film. The Federal Election Commission argued that both the film and the commercials advertising the film violated both the spirit and the letter of the McCain-Feingold Act. Therefore, the commission was entitled to a summary judgment in the case. Citizens United opposed the summary judgment motion, arguing that the film was a documentary that was plainly nonpartisan, that the film was not “publically distributed,” and that, as a result, the film was not “electioneering communication.” Therefore, they concluded that none of their activities violated McCain-Feingold. Moreover, Citizens United also contended that, even on the remote chance that their actions did violate McCain-Feingold, the law itself was unconstitutional.
Specifically, Citizens United believed that the section of McCain-Feingold that censored political films like Hillary: The Movie and the section that mandated certain disclosure and reporting requirements were both unconstitutional. The court did not agree with Citizens United and ruled that the film, which had been financed by Citizens United, was a deliberate, unapologetic attempt to malign the reputation of Senator Clinton and, as such, violated the statute’s prohibition against “independent expenditures” for “electioneering communications” within 30 days of a primary. Also, following a previous case, Austin v. Michigan Chamber of Commerce , in which the U.S. Supreme Court ruled that corporate political speech could be censored by law without violating the First Amendment, the district court in the Citizens United case ruled McCain-Feingold to be constitutional. As a result, two interesting and obviously contradictory rulings were now caught within the legal system: the Fahrenheit 9/11 ruling, permitting the promotion and release of a corporately financed, obviously political film, and the ruling in Hillary: The Movie , outlawing what was essentially the same thing.
As you would expect, the case ended up in the United States Supreme Court.

The Supreme Court was actually faced with a dispute that consisted of two levels of inquiry. The first level is the issue of whether the activities of Citizens United in relation to the distribution, promotion, and presentation of Hillary: the Movie violated the provisions of the McCain-Feingold Act. Generally, if a court can decide a case on the narrower issue of strict legality rather than the broader issue of constitutionality, the court will do so. Such a decision has a much more limited and, therefore, much less disruptive effect on the legal system outside of the current case, thus promoting two of the three purposes of the law, order and stability.
Deciding a case in this way is also part of the balancing function of the law. One of the most obvious dualities in the law is the balance between the spirit and the letter of the law. Generally, a person who follows the “spirit” of the law has found its actual intent, while one who is tied to the letter of the law has missed its true meaning. In this case, the Court could have followed the letter of the law and ruled that the activities of Citizen’s United violated McCain-Feingold. This would have ended the case right then and there. However, such a decision on the part of the Court would have violated the spirit of the law, represented by the U.S. Constitution, in general, and the First Amendment, in particular. For these reasons it makes sense to defend the Supreme Court’s decision to move on to the issue of McCain-Feingold’s constitutionality. This means that the Court elected to immerse itself within the process of judicial review , that is, it decided to determine the constitutionality of a portion of McCain-
Feingold. The Citizens United case revolved around the First Amendment’s guarantee of free speech, especially as it relates to politics and corporations.
Whenever rights become the focus of a legal discussion, it is informative to look first at the theory of negative rights . The theory of negative rights argues that “rights” are a human invention designed to help people escape moral law. Thus, under this theory, the right to free speech is actually the right to lie and get away with it or, stated another way, it is the right to say what one wants, without legal consequences. The courts rarely follow this line of reasoning. Nevertheless, judges sometimes limit the right of free speech perhaps because, intuitively or subconsciously, they perceive the truth of the negative rights theory. Thus, it is not impossible for the law to impose some limits on free speech. The law can limit free speech, for example, to protect individuals from slander and libel, to protect an author’s copyright and, thus, to preserve his nor her right to receive royalties, or to limit what a governmental agent might say in carrying out his or her duties as a representative of the government. Despite these limitations, in most instances, speech is protected from prior restraint (read “censorship” here) by the Federal government under the First Amendment, and by the states under the First and the Fourteenth Amendments...........

Questions

1. The Federal Elections Commission filed a summary judgment motion with the District Court to have the case brought by Citizens United dismissed. What is a summary judgment motion and why is it appropriate in this case? Explain.
2. Citizens United filed a request for an injunction in the same case. What is an injunction and why is it appropriate in this case? Explain.
3. What is at stake in the balancing act generally involved in the law-making process in a case like this? Explain.
4. What is the negative rights theory of ethics and just how does it impact this case? Explain.
5. The court stipulates that there are some very specific situations in which the government is permitted to censor free speech. What are they?
6. The court explains that there are two situations in which the government cannot limit free speech. What are they?
7. Which of these two situations would explain why the courts have outlawed hate speech crimes? Explain.
8. In this case, the Supreme Court must engage in both statutory interpretation and in judicial review. Explain the difference between the two.
9. Explain how stare decisis is at the heart of this case. What case is overturned and why is it overturned? Explain.
10. In the Supreme Court’s opinion, Justice Kennedy outlines three situations that will permit a case to be overturned. List those three situations.