American court hearing recordings and interviews - Citizens United v. Federal Election Commission - March 24 2009 Oral Argument before US Supreme Court

Episode Date: April 21, 2025

MP3 from the Oyez websitehttps://www.oyez.org/cases/2008/08-205

We'll hear argument today in case 08205, Citizens United versus the Federal Election Commission. Mr. Olson. Mr. Chief Justice, and may it please the Court, participation in the political process is the First Amendment's most fundamental guarantee. Yet that freedom is being smothered by one of the most complicated, expensive, and incomprehensible regulatory regimes ever invented by the administrative state. In the case that you consider today, it is a felony for a small nonprofit corporation to offer interested viewers a 90-minute political documentary about a candidate for the nation's highest office that General Electric, National Public Radio, or George Soros may freely broadcast. Its film may be shown in theaters, sold on DVDs, transmitted for downloading on the Internet,

and its message may be distributed in the form of a book, but its producers face five years in prison if they offered in the home through the vehicle of video on demand. Because the limitation on speech, political speech, is at the core of the First Amendment, the government has a heavy burden to establish each application of a restriction on that form of speech

is a narrowly tailored response to a compelling governmental interest. The government cannot prove and has not attempted to prove that a 90-minute documentary made available to people who choose affirmatively to receive it to opt-in by an ideologically oriented small corporation poses any threat of quid pro quo corruption or its appearance. Indeed, this documentary is the very definition of robust, uninhibited debate about a subject of intense political interest that the First Amendment is there to guarantee. Mr. Olson, if the film were distributed by general motives, would your argument be the same? Well, it definitely would not be the same because there are several aspects of the argument that we present.

However, in one respect, it would. A 90-minute documentary was not the sort of thing that the BICRA, the Congress was intended to prohibit. In fact, as the reporters committee for freedom of speech points out, the documentary is objectively indistinguishable from other news media commentary. But the point then of similarity is you would, whether it was offered by General Motors, are offered by this petitioner, in effect, call for some qualification of the general rule allowing limitations on corporate political activity of the speech variety. Yes, we would, although it is a very important fact. How would we draw the line?

Well, one of the reasons that you — one of the bases upon which you would draw the line is to look at the documentary — the voluminous documentary record that the government's and this Court cited in the McConnell case as a justification for the restrictions themselves. Well, would every, in effect, every limitation on corporate speech or on corporate expenditure and the nature of speech be subject then to, in effect, this all-factor balancing test? Well, I think what I'm trying to say is that what the Congress was concerned with, and Judge Cole Architelli in the district court opinion that you considered in my McConnell discusses this on page 646 of her opinion, that this sort of communication was not something that Congress intended to prohibit.

You would look at if Congress intended to prohibit 90 minutes. So your argument, then, is there something distinct about the speech, which could be considered regardless of the corporate form? Well, that's part of our argument, yes. If that is the case, what is the answer to this? that still is going to involve a fairly complicated set of analyses probably in a lot of cases. Why is that necessary or worthwhile reserve First Amendment values when you could have done this with a PAC? Well, as this Court said in the Wisconsin Right to Life case, just a couple of years ago, that the PAC vehicle is burdensome and difficult.

That's right. You've got reporting. You've got limitations on – on, you know, corporate contributions and so on. But in this case, for example, most of your contributions, as I understand it from the record, were individual. They weren't corporate. There was one, perhaps, there was some corporate contributions. Yes, on page 252 of the appendix and 251, it points out, you're absolutely correct,

that 1 percent of the contributions were from corporate rates. Was that established? I thought that the record was hardly made of the contributors to this film. I think there was something like $200,000 accounted for, and the film cost to get the Channel 08, whatever it was, to put it on, cost over a million dollars. The government sent an interrogatory, Justice Ginsburg, asking for the major contributions with respect to this project.

and the ones that they sought, the government sought what they thought was important, the answer to that interrogatory is at page 251A and 252A, that the government was seeking information with respect to contributions at $1,000 or more. $198,000 came from individuals. And by the way, the three largest contributors that are listed on page 252 of the joint appendix are given credit in the film itself. So there's no effort to conceal those individuals. So it's possible that corporations throughout America

were giving small amounts of money to this. That record doesn't establish one way or the other. What it does establish is what the government felt was necessary for its case that the major contributors were individuals and not corporations. You answered Justice Souter. I took your answer to be the, the following, that if the corporation had paid for a program and the program was 90 minutes which said vote for Smith, vote for Smith over and over, that's the program, that you can

see that the government could ban this under the Act. Well, it is difficult for — I don't think they would. We agree. It's an imaginary hypothetical. But in fact, if they did have 90 minutes of vote for Smith or vote against Jones, You concede for purposes of this argument that the government can ban. Is that right or not?

If not by this organization, we think that if it's a small, nonprofit organization, which is very much like the Massachusetts... Okay, okay. So one of your arguments is this is a special corporation you can't. Now suppose it's General Motors. Can they? Well, General Motors may be smaller than the client that we're representing. I understand the trust.

I want to get an answer to the question. Yes, I think that to the extent. Now, then my question that I'm driving towards is, since General Motors can, in your view, be forbidden to have our film of 90 minutes, vote for Smith, vote for Smith, vote for Smith, or vote against Jones, vote against Jones, vote against Jones. How is this film, which I saw, it is not a musical comedy? how does this film vary from my exam? And why does the variance make a difference? The difference is it's exactly what the Court was describing in Wisconsin Right to Life. It is a 90 – it informs and educates, which is what the Court said,

the Chief Justice's opinion, the controlling opinion said was the mark of an issue communication. And as this Court said, there is a lot of one. But, Mr. Austin, I thought you conceded in the, at least as I read your reply brief, that you were no longer saying this is about an issue unrelated to any election. I thought you said that this was a 90-minute movie concerning the qualifications, character, and fitness of a candidate for the nation's highest office. And that's just what Wisconsin right to life was. not. It was not about the character, qualifications, and fitness of either of the senators. What the Court said in Wisconsin right to life was that the distinction between an issue advocacy and campaign advocacy dissolves upon practical application. This is exactly

what the Court was talking about there. But didn't the Court there say this is not about character, qualifications and fitness? Yes, it did, Justice Ginsburg. But what my point is that there isn't just two boxes in the world of communications about public issues, one box for so-called issues and one box for campaign advocacy. That's what I think the Court meant when it said not just in Wisconsin right to life, but in earlier cases, that the distinction dissolves upon application.

But no matter how many boxes we have, doesn't this one fall into campaign advocacy? I mean, I've got the government's brief open at pages 18 and 19 with the quotations. She'll lie about anything. She's deceitful. She's ruthless, cunning, dishonest, do anything for power. We'll speak dishonestly. Reckless, a congenital liar, sorely lacking in qualifications, not qualified as commander-in-chief. I mean, this sounds to me like campaign advocacy.

What the court was talking about, and as Justice Korattele talked about, is broadcast advertising, these 10-minute, 10-second, 30-second, 60-second bursts of communication that are the influence in elections. I want to get the answer to what I was asking. But it seems to me the answer to Justice Breyer's question, this is a don't-vote for Jones. This is a long discussion of the record, qualifications, history, and conduct of someone who's in the political arena, a person who already holds public office, who now holds a different public office, who, yes, at that point, Justice Souter, was running for office.

But the fact is that what could the individual making a, as I said, the Reporters Committee for the Right to Life said this is indistinguishable from something that is on the public media every day, a long discussion, it might be, what you're suggesting is that unless it's somehow even-handed, unless it somehow says, which would be viewpoint, discrimination or prevention of viewpoints, which is the safe harbor that the government has written into its so-called safe harbor. If you don't have a point of view, you can go ahead and accept it.

So that isn't the suggestion. The suggestion I was trying to get to is we know you can't just say vote against Smith, vote against Smith, vote against Smith. Now, I wanted to know the difference between that and a film that picks out bad things that people did. No good ones, just bad ones the candidate did. And then we have another film that picks out just good things candidates do. And so candidates run films that show the good things they do. And then someone else shows the bad things they do. Now, why is that not the same as vote against Smith, though I grant you it's more intelligent, it's more informative, it's even

better electioneering. So we're after electioneering? Why doesn't that fall within the forbidden category? The government has the burden to prove there's a compelling governmental interest, narrowly tailored, Justice Breyer, because all kinds of things of the type that you're talking about are permissible if your name is General Motors. I mean, if your name is General Electric rather than General Motors, if your name is Disney, if your name is George Soros, if your name is National Public Radio, what you're suggesting is that a long discussion of facts, record, history, interviews, documentation, and that sort of thing, if it's all negative, it can be prohibited by, and it's a felony. You can go to jail for five

years for sharing that information with the American public, or if it's all favorable, you can go to jail. But if you did half and half, you couldn't. I guess it's the same as if you were to say, you know, I think Smith is a great guy. That's all. I'm sharing information. And what I don't see is if you agree that we could ban the commercial that says, I see Smith is a great guy. Why is it any different to supplement that with the five best things that Smith ever did?

because of the First Amendment. Congress shall make no law for bridging the freedom of speech. When this Court has permitted that to happen, it has only done it in the most narrow circumstances for a compelling governmental interest. But I guess what Justice Breyer is asking is I have the same question. If we concede, and at the end of the day you might not concede this, but if we take this as a beginning, that a short 30-second, one-minute campaign ad can be regulated. You want me to write an opinion to say, well, if it's 90 minutes, then that's different. It seems to me that you can make the argument the 90 minutes is much more powerful

in support or in opposition to a candidate. That's the thrust of the question. I understand that, Justice Kennedy, and it is difficult, but let me say that the record that you were considering at McConnell, and I specifically invite, as I, did before, page the Court's attention to 646 of the District Court's opinion, which specifically said the government and Congress was concerned about these short, punchy ads that you have no choice about seeing and not concerned about thorough recitation of facts or things that you would have to make an affirmative decision to opt into.

And the reason why it's difficult is that we were talking about an infinite variety of ability of people to speak about things that matter more to them than anything else. Who will be — Counsel, I think you've kind of shifted your focus here from the difference between a 10-second ad and a 90-minute presentation and how that presentation is received, whether it's over the normal airwaves or on this video on demand. What is the distinction between the 10-second commercial and, say, the 90-minute infomercial? The thing that I think it's pointed out specifically

in your opinion, controlling opinion for Wisconsin right to life. That which informs and educates and may seek to persuade is something that is on the line of being permissible. The government hasn't established, never did try to establish. I did shift. I didn't shift, but all of these are factors. It's who's doing this speaking. You can educate in 30 seconds. I mean, in a 30-second ad, you present just one of these.

criticisms of the candidate instead of lumping all of them together for 90 minutes. The point I think, does that educate? The point I think, Justice Schilly, is, yes, you can educate in 10 seconds, you can educate in 30 seconds. But what the Court was trying to do, what Congress was trying to do is get at the things that were most potentially corruptive. Now, wait. Are you making a statutory argument now or a constitutional argument?

What Congress was trying to do has nothing to do, it seems to me, would. with the constitutional point, your argument. The government makes the point that it established a voluminous record of evidence. Both Congress had before it and this court had before it a voluminous volume of evidence because it had the burden of proving that something was really bad with these types of advertisements. And what the court did is say, well, okay in McConnell, yes, there is a substantial burden that the government met that these types of communications, not the Internet, not books, not other types of things, are really bad enough that the government could pick those out and it is narrowly tailored its solution to that problem

by prohibiting those things. And the government talks about this today in its brief, the things that Congress felt were the most acute problem. So you were making a statutory argument now. You're saying that this isn't covered by it. Yes, I am making a statutory argument in the sense. that you will construe this statute in the ways that doesn't violate the Constitution. The Constitution, as the Court said in Wisconsin right for the life, gives ties to the Speaker, errs on the side of permitting the speech, not prohibiting the speech.

And so all of those things may be statutory arguments, Justice Scalia, but they are also constitutional arguments. And in response to every one of these questions, the government has the burden of proving this sort of speech, which the reporter say is indistinguishable than the kind of information that news media puts out all the time. So this argument doesn't depend upon whether this is properly characterized as expressed the functional equivalent of express advocacy. Your contention is that even if it is, because it wasn't in the factual record in McConnell or before Congress, it is a type of functional — it is a type of express advocacy.

that's not covered by the act? I don't think, Chief Justice Roberts, that it is remotely the functional equivalent of express advocacy, because what the court and Congress was thinking about with respect to express advocacy was short, punchy. Well, that's what I'm trying to figure out the distinction in your argument. I mean, if we think that this is the functional equivalent of express advocacy, are you contending that it is nonetheless not covered

in light of the record before the Court in McConnell and before Congress? I think I would agree with that, but I would also say that the idea of functional equivalent of express advocacy is the very magic word problem that this Court has struggled with in McConnell and in each of the cases. I said at the beginning that this is an incomprehensible prohibition, and I think that That's demonstrated by the fact that since 2003, this Court has issued something close to 500 pages of opinions interpreting and trying to apply the First Amendment to Federal Election Law. And I counted 22 separate opinions from the justices of this Court attempting to, in just the last six years, attempting to figure out what this statute means, how it can be interpreted. In fact, well, that's because it's mandatory appellate jurisdiction.

I mean, we don't have a choice. There would be fewer opinions. I guess my point is that... Maybe those cases presented more difficult issues than this one. I think this presents a much easier issue, Justice Stevens, because this is the type of... If there is anything that the First Amendment is intended to protect in the context of elections that are occurring,

which, by the way, per four years running, but the last election, presidential election, occurred throughout the entire 2008. If the American people need to have that kind of information, and the statute is both overly broad because if it was a hotel ad, if it was a hotel saying Senator Clinton stayed here or Senator McCain stayed here, it would be prohibited because it was a hotel saying. So even though it really had nothing to do with the election,

but if it's a corporation that put together an analysis of the, earmark top positions of each of the senatorial candidates. Most of all of the candidates were running from the Senate, they all had these issues where they may have voted or not against earmarks. But Mr. Olson, this is, I think you were right in conceding at the beginning. This is not like the speech involved in Wisconsin right to like. This is targeted to a specific candidate for a specific office to be shown on a channel that says election, 2008, that tells the viewer over and over again what, just, for example, it concludes with, these are things worth remembering before you go in potentially to vote for Hillary Clinton.

Now, if that isn't an appeal to voters, I can't imagine what is. Yes, Justice Ginsburg, I understand your point. There is much in there that if you sought, you would, form an opinion with respect to how you might want to vote. You might form a different, you might form all kinds of different opinions, but it was an analysis of the background record in history and qualifications of someone running for president. Of course I can see that. But what is the, what is the maker of a movie to take out in order to prevent that from happening? I understand from some of the questions that it was more even-handed. If it said,

Well, this candidate did this, but this candidate did this, or this candidate was born in the Panama Canal Zone, and this candidate was born in Hawaii, and that affects whether or not they're natural-born citizens or not, and it was more even handed would that then not be a felon? Well, as you said yourself, as you pointed out, there is a point at which there is no non-porous border between issue discussion and candidate discussion. But I think the problem that Justice Ginsburg is having that I'm having and others is that it does not seem to me that with the quotations we're dealing with here, as Justice Breyer said, it's not a musical comedy. I think we have no choice, really, but to say this is not issue advocacy. This is express advocacy saying don't vote for this person. And if that is a fair characterization, the difference between 90 minutes and one minute, either for statutory purposes or constitutional purposes, is a distinction that I just cannot follow. Well, it is a distinction that Congress was concerned about, and it's a distinction that's all over the record.

But you say that. Why? What is your basis for saying that Congress is less concerned with 90 minutes of don't vote for Clinton than it was with, 60 seconds of those vote. Because the record in Congress and the record in this Court is that those types of advertisements were more effective because they came into the case. They are the characteristic advertisement. There is no question about that. That is the paradigm case. I agree with you.

But I don't see how you then leap from saying that is the paradigm case to saying that this never covers anything but the paradigm case when the only distinction. distinction is time. I think what Congress was concerned about is the most severe and the most acute problem, as Justice Cole Architelli said, which everyone acknowledges was the problem Congress sought to address with Bikra. It's not just that, however. The point that you just made about a non-poorist border, it is the government's responsibility

to the extent that you can't figure out how even-handed you must be or what you must take out of your communication in order not to go to jail for airing it, it is the functional equivalent. If everything is the functional equivalent, it mentions a candidate during an election, which is what the government says, it's the functional equivalent of a prior restraint. Mr. Olson, I think we've been led astray by the constant reference to what Congress intended. As I understood your point, it was not — it was not — that one is covered by the statute and the other isn't, but it is that one is covered by the Constitution and the other isn't.

And it may well be that the kind of speech that is reflected in a serious 90-minute documentary is entitled to a greater constitutional protection. And it may well be that the kind of speech that is not only offered but invited by the listener is entitled to heightened First Amendment scrutiny, which is what this is since you had to pay for view. I agree with that completely, Justice Scalia. Mr. Chief Justice, if I may reserve the remainder of my time. Thank you, Counsel. Mr. Stewart.

Mr. Chief Justice, and may it please the Court, the lead opinion in Wisconsin right to life didn't just use the term functional equivalent of express advocacy. It explained what that term meant. And on page 2667 of Volume 127 of the Supreme Court reporter, the plurality or the lead opinion stated, in light of these considerations, a court should find that an ad is the functional equivalent of express advocacy, only if the ad is susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate. So the functional equivalence test doesn't depend on the length of the advertisement or the medium in which the advertisement is. Well, the length of the advertisements wasn't remotely at issue in either of Washington.

and right to life or McConnell or before Congress when they passed this law? Well, certainly Congress considered a variety of evidence bearing on campaign practices that had been undertaken in the past. They were primarily, most of the examples on which they focused were 30 second and 60 second advertisements. It's certainly been a recurring phenomenon in the past that candidates would air, for instance, 30-minute infomercials. Any discussion in either McConnell, any citation, either in McConnell or the Congressional, record to those types of documentaries? I'm not sure about the citation.

I'm not aware of any citation in McConnell or the congressional record, but it was certainly a known phenomenon. And I think the real key — Well, I mean, how do we know it was a known phenomenon in terms of the evolution of the statute and the decision of this Court upholding it? There's no reference to it. I think the real key to ascertaining Congress's intent is to look to the definition of electionering communication that Congress enacted into the statute, and that definition

requires that the communication be a broadcast cable or satellite communication in order to qualify as an electioneering communication and that it be aired within a certain proximity to a federal election and that in the case of an election. So if Walmart airs an advertisement that says we have candidate action figures for sale come by them, that counts as an election airing communication? If it's aired in the right place at the right time, that would be covered. Now, under this Court's decision in Wisconsin Right to Life, it would be unconstitutional as applied to those advertisements because those advertisements certainly would be susceptible of a reasonable construction.

Do you think the Constitution required Congress to draw the line where it did, limiting this to broadcast cable and so forth? What's your answer to Mr. Olson's point that there isn't any constitutional difference between the distribution of this? movie on video demand and providing access on the Internet, providing DVDs, either through a commercial service or maybe in a public library, providing the same thing in a book. Would the Constitution permit the restriction of all of those as well? I think the Constitution would have permitted Congress to apply the electioneering communication restrictions to the extent that they're otherwise constitutional under Wisconsin right to life. have been applied to additional media as well.

And it's worth remembering that the pre-existing Federal Election Campaign Act restrictions on corporate electioneering, which have been limited by this Court's decisions to express advocacy. That's pretty incredible. You think that if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned? I'm not saying it could be banned. I'm saying that Congress could prohibit the use of corporate treasury funds and could require a corporate to publish it using its...

Well, most publishers are corporations. And a publisher that is a corporation could be prohibited from selling a book? Well, of course, the statute contains its own media exemption for media. But I'm not asking what the statute says. The government's position is that the First Amendment allows the banning of a book if it's published by a corporation. Because the First Amendment refers both to freedom of speech

and of the press, there would be a potential argument that media corporations, the institutional press, would have a greater First Amendment right. That question is obviously not presented here. The other two things would — Suppose it were an advocacy organization that had a book. Your position is that under the Constitution, the advertising for this book or the sale for the book itself could be prohibited within the 60-90-day period, the 30-day period. If the book contained the functional equivalent of express advocacy, that is, if it was subject to no reasonable interpretation.

And I suppose it could even, is it the Kindle where you can read a book? I take it best on a satellite, so the existing statute would probably prohibit that under your view. Well, the statute applies to cable satellite and broadcast communications, and the Court in McConnell has addressed this question. So just to make it clear, it's the government's position under this statute, if this Kindle device where you can read a book, which is campaign and EB, because it's within the 60-30-day period, if it comes from a salad light, it can be prohibited under the Constitution and perhaps under this statute.

It can't be prohibited, but a corporation could be barred from using its general treasury funds to publish the book and could be required to raise funds to publish the book using its PAC. If it has one name, one use of the candidate's name, it would be covered, correct? That's correct. If it's a 500-page book, and at the end it says, and so vote for X, the government could ban that. Well, if it says vote for X, it would be express advocacy, and it would be covered by the pre-existing Federal Election Campaign Act provision. No, I'm talking about under the Constitution what we've been discussing, if it's a book. If it's a book and it is produced, again, to leave to one side the question of the possible media exemption.

If you had Citizens United or General Motors using General Treasury funds to publish a book that said at the outset, for instance, Hillary Clinton's election would be a disaster for this. No, no, take my hypothetical. It doesn't say at the outset. It runs here is a whatever it is. This is a discussion of the American political system. And at the end, it says vote for X. Yes.

Our position would be that the corporation could be required to use PAC funds rather than general treasury funds. And if they didn't, you could ban it. If they didn't, we could prohibit the publication of the book using the corporate treasury fund. I wonder if that's – I mean, I take it the answer to the question. Can the government ban labor unions from saying we love this person? The corporations, we love them. The environmentalists saying we love him is, of course the government can't ban that. The only question is, who's paying for it?

And they can make a determination of how much money the payors can pay, but you can't ban it. That's correct. If that's correct, then I take it the interesting question here would be, I don't know if it rises in this case. Suppose there were a kind of campaign literature or advocacy that either a corporation had to pay for, it. It couldn't pay for it through the PAC because for some reason I don't know the PAC. And there's no other way of getting it to the public. That would raise a constitutional question, wouldn't it? It would raise a constitutional question. Is that present in this case?

It's not present in the case. I don't think it would raise a difficult, quite constitutional question because presumably if the reason that the corporation couldn't do it through the PAC, the only reason I could think of would be that it couldn't find PAC-eligible donors who were willing to contribute for this speech. And if that's the case, the corporation could still be forbidden to use its general treasurer. I know about that one. I would guess I would be worried if, in fact, there was some material that couldn't get through to the public. I would be very worried. But I don't think I have to worry about that in this case. Do I? That's correct, both because the question

isn't presented here and because Congress — Well, but if we accept your constitutional argument, we're establishing a precedent that you yourself, say, would extend to banning the book, assuming a particular person pays for it. I think the Court has already held both in Austin and in McConnell that Congress or State legislatures can prohibit the use of corporate treasury funds for express advocacy. To write a book. To pay for somebody to write a book. Well, in MCFL, for instance, the communication was not a book, but it was a newsletter.

It was written material. And the Court held that this was express advocacy for which the use of corporate. Treasury funds would ordinarily be banned. It held that because of the distinctive characteristics of the particular corporation at issue in that case, MCFL was entitled to a constitutional exemption. But I think the clear thrust of MCFL is that the publication and dissemination of a newsletter containing express advocacy could ordinarily be banned with respect to the use of corporate treasury funds.

Not just the news, I suppose a sign held up in Lafayette Park. saying vote for so and so. Under your theory of the Constitution, the prohibition of that would be constitutional. Again, I do want to make clear that if by prohibition you mean ban on the use of corporate treasury funds, then yes, I think it's absolutely clear under Austin, under McConnell, that the use of corporate treasury funds could be banned

if General Motors, for instance, and you get around the fact that this would extend to, any publishing corporation by saying that there is a media exemption because the Constitution guarantees not only freedom of speech but also of the press? Well, there has always been. Does the press mean the media in that constitutional provision? You think in 1791 there were people running around with fedoras that had little press tickets in it?

Press. Is that what press means in the Constitution? Doesn't it cover the Xerox machine? Doesn't it cover the right of any individual to write, to publish? Well, I think the difficult constitutional question of whether the general restrictions on use of corporate treasury funds for electioneering can constitutionally be applied to media corporations has never had to be addressed because the statutes that this Court has reviewed have... Well, I don't see any reason why it wouldn't. I'm saying there's no basis in the text of the Constitution for exempting... press in the sense of, what, the fivots?

In any event, the only question this Court would potentially need to decide in this case is whether the exemption for media companies creates a disuniformity that itself renders the statute unconstitutional. And the Court has already addressed that question in McConnell. The claim was made that because media corporations were exempt, there was inequality of treatment as between those and other corporations, and Congress said no, Congress I mean, this Court said, no, Congress can protect the interests of the media and of the public and receiving information by drawing that line. I want to know how far your argument would go.

What if a labor union paid an author to write a book advocating the election of A or the defeat of B? And after the manuscript was prepared, they then went to a commercial publisher. And they got a random house. Random House says, yeah, we will publish that. Can the distribution of that be, in effect, subject to the electioneering ban because of the initial labor union investment? Well, exactly what the remedy would be, whether there would be a basis for suppressing the distribution of the book, I'm not sure. I think it's clear under — Does it come within electioneering because of the initial suspension to the author?

It wouldn't be an electioneering communication under Bikra because Bikra wouldn't apply to the print media. Now, it would potentially be covered by the – No, but we're talking about how far the constitutional ban could go, and we're talking about books. Well, we would certainly take the position that if the labor union used its treasury funds to pay an author to produce a book that would constitute express advocacy, and the book was then taken over as a commercial venture by Random House. The labor union's conduct would be prohibited,

the question of whether the book that had already been – The prohibition only comes when we get to the electioneering stage. That's correct. Okay. The question whether the — So for the — for the labor union simply to hire — is there an outright violation when the — I guess this is the statutory question, is there an outright violation where the labor union comes up with the original suspension?

I guess I would have to study the Federal Election Campaign Act provisions more closely to see whether they — Let's assume for the — sake of argument that there would not be. The subvention is made. The manuscript is prepared. Random House then publishes it, and there is a distribution within the, what is it, the 60-day period. Is the original suspension, A, enough to bring it within the prohibition on the

electioneering communication, and B, is that constitutional? Well, again, it wouldn't qualify as an electioneering communication under BICRA because that statute of laboratory definition only only. You're right. I stand corrected, if the statute covered that as well, if the statute covered the book as well. I think the use of labor union funds as part of the overall enterprise of writing and then publishing the book would be covered. That would be enough to bring it in. And I don't — And I think it would be constitutional to forbid the labor union to do that.

Again, just to follow it, even if there's one clause in one sentence in the 600-page book that says, in light of the history of the labor movement, you should be careful about candidates like John Doe who aren't committed to it. Well, whether in the context of a 600-page book, that would be sufficient to make the book either an electioneering communication or... It does by its terms, doesn't it?

Published within 60 days. It mentions a candidate for office. What other qualification is there? Well, I think the court has already crossed that bridge in Wisconsin right to life by saying the statute could, constitutionally be applied only if it were the functional equivalent of express advocacy. And so that would be the – and we accept that constitutional holding.

That would be the relevant constitutional question. I wanted to return for a second, Justice Alito, to a question you asked about the purported interchangeability of the Internet and television. And it's certainly true that a growing number of people are coming to experience those media as essentially interchangeable. But there are still a lot of people either who don't have computers at all or who use their televisions and their computers for fundamentally different purposes. And I think it's evident that Citizens United

perceived the two media to be distinct because it was willing to pay $1.2 million to a cable service in order to have the film made available by video on demand when Citizens United could have posted the film on its own website, posted the film on YouTube, and could have avoided both the need to make that payment and the potential applicability of the electioneering communication. If they had done either of the things you just mentioned,

putting it on its own website or putting it on YouTube, your position would be that the Constitution would permit the prohibition of that during the period prior to the primary of the election. Our position is not that the Constitution would permit it. Our position is that BICRA wouldn't prohibit it because those are not covered media. Now, would the Constitution, if BICRA, if Congress in the next act, covered that in light of advances in the Internet. Would the Constitution permit that?

Yes. I mean, the Court in McConnell upheld the electioneering communications on their face, and a majority of this Court in Wisconsin right to life said those provisions are constitutional as a five. I'm really disoriented here, Mr. Stewart. We are dealing with a constitutional provision, are we not the one that I remember, which says Congress shall make no law abridging the freedom of the press?

That's what we're interpreting here? That's correct. Okay. But again, the Court obviously has grappled in the past with the question of how to apply that provision to use of corporate treasury funds, either for express electoral advocacy or its functional equivalent. But in this case, Mr. Stewart, I take it, correct me if I'm wrong, that you think the distinction the petitioner draws between the 90-minute film. and the short 30-second or one-minute ad is a baseless distinction. It is of no constitutional significance.

Congress certainly could have drafted the election-mearing communication definition. So if we think that the application of this two-a-90-minute film is unconstitutional, then the whole statute should fall under your view, because there's no distinction between the two. Well, I think the court has twice appelled the statute as applied to communications that are the functional equivalent of express and ad. But I'm saying that if we think that this film is protected and you say there's no difference between the film and the ad, then the whole statute must be declared. It would depend on the ground under which you reach the conclusion that this film was protected. If you disagreed with our submission and said there is a constitutional difference between 90-minute films and 60-second advertisements, then obviously you could draw that constitutional line.

If you concluded that they're all the same, but they're all protected, then obviously we would lose both cases. But again, you would have to over- You want us to say they're both the same. You argued that they're both the same. That's correct. Now, it may be the case, it may be rarer to find a 90-minute film that is so unrelenting in its praise or criticism of a particular candidate

that it will be subject to no reasonable interpretation other, than to vote for or against that person. But when you have that, as I think we do here, there's no constitutional distinction between the 90-minute film and the 60-second advertisement. And we would stress with respect to the film that what makes this in our view an easy case is not simply that the film repeatedly criticizes Hillary Clinton's character and integrity.

The clincher is that the film repeatedly links Senator Clinton's purported character flaws through qualifications for president. But just from that standpoint of art and literature, very odd. Suppose you have a film which is very quite moving with scenery and music and magnificent acting and a subtle message that may be far more effective. And in advocating, and everyone knows that. Everyone knows that. That's essentially the argument that this is, that a majority of this court rejected in Wisconsin right to life. That is, that that was part of

the basis on which Congress enacted VICRA, part of the reason that it wanted to establish a purely objective test based on naming an identified candidate and erring in proximity to the election. Congress recognized that in many situations the most effective advocacy is the subtler advocacy. And the lead opinion in Wisconsin right to life said, I think recognized that it will foreseeably be the case that corporations will craft advertisements that are in fact intended to influence federal elections, but that are sufficiently subtle and opaque that they won't constitute the functional equivalent of express advocacy. And the lead opinion simply said, that's the price that we have to pay in order to ensure

that an unduly broad range of corporate speech is not restrictive. And we accept that holding. But in this case, what we have is not subtle. People may feel that because it's not subtle, it's less likely to be effective. but the court's decisions have never drawn a constitutional line between advocacy that is likely to be effective and advocacy that is not. Clearly, if this were express advocacy, I think clearly, if the narrator had said in the first 30 seconds of the film, a Hillary Clinton presidency would pose a danger to the country.

It's important for all citizens to vote against Hillary Clinton. What follows are extended analyses of episodes in her past that reflect Hillary Clinton's unsuitability, for that office. And if then in the last 89 minutes of the film, the filmmaker had made no overt reference to the upcoming election but had simply given a negative portrayal of Hillary Clinton the person, that would be express advocacy that would be proscribable even without regard to Bikra. Even though that type of case was never presented to the court in McConnell and was never presented to Congress when it considered Bikra.

Well, it's not clear whether it was presented to Congress or not. It's certainly true that It was not a focus of congressional attention. But we know from the definition of electionary and communication what attributes Congress wanted to make relevant to the coverage determination. That is, it chose to restrict this to broadcast cable and satellite communications and to leave out the print media. It chose to restrict it to advertisements or other communications that were aired within a specific proximity to the election. If it had been unconcerned with communications over a certain length, it could certainly have made that part of the statutory definition, but it chose not to do that.

This film has been compared to Fahrenheit 9-11, which had the pervasive message that President Bush was unsuited to be president. And so if that film had been financed out of corporate general, Corporation's General Treasury Fund and put on an election channel that would similarly be banned by this statute. I'm afraid I'm not familiar enough with that film to know whether it would have constituted to make an informed judgment about whether that would have constituted the functional equivalent of express advocacy under Wisconsin right to life.

And, of course, the electioneering communication definition would apply only if the film had been broadcast within a specified proximity to a primary or general election in 2004. But I think you — Mr. Stewart, you think that there's a possibility that the First Amendment interest is greater when what the government is trying to stifle is not just a speaker who wants to say something, but also a hearer who wants to hear what the speaker has to say. I mean, what's somewhat different about this case is that unlike over-the-air television, you have a situation where you only get this.

This message is only aired if somebody elects to hear it. So you really have two interested people, the speaker and the listener who wants to get this. Isn't that a somewhat heightened First Amendment interest than just over-the-air broadcasting of advertising, which probably most listeners don't want to hear. Well, I think, first of all, I think if we had tried to make the argument in McConnell that the BICRA provisions, or in any other case, that the BICRA provisions are constitutional as applied to 30 or 60-second advertisements because they are defensible means of protecting listeners who, by hypothesis, don't want to hear the message in the form of a captive audience,

I don't think we would have gotten very far. I think it's certainly true that people have a wide variation of attitudes towards campaign advertisements. Some of them find them irritating, and of course they could hit the mute button or leave the room, or in the case of people who use TiVo or BCRs can simply fast forward through them. But the whole premise of the congressional regulation and the whole premise of the corporation's willingness to spend these massive amounts of money was that enough people will be interested in the advertisements that they will ultimately have an electoral effect. And so if you compare the film to the advertisement,

the advertisements in one sense you could say are a less effective mechanism because a lot of the people who reach them are unwilling listeners or uninterested, but on the other hand, they're more effective because they reach more people. The flip side is that with the film, you reach a smaller audience. It's certainly a more limited group of people who will sign up to receive the movie,

but they're more interested in the message. I don't think you can operate on the hypothesis that there is no... I'm talking about effectiveness. That wasn't my point. My point was the seriousness of the First Amendment interest that's being impinged, where you have both somebody who wants to speak and someone who affirmatively wants to hear what he has to say. say, and the government says, no, the two of you can't do this.

Don't you think that's somewhat worse than the government just saying to somebody who wants to speak? No, you can't speak? I think it would be impossible to divide media up in that way based on the relative likelihood that the recipient of the message will want to hear it. With respect to the newsletters in MCFL, for instance, in many instances they were made available in public places. they were also mailed to a variety of people. You could say, well, one. I mean, you have a situation here where you don't get it unless you take the initiative to subscribe. I'm not trying to figure out person by person who wants to hear it and who doesn't.

Here you have a medium in which somebody listens only if that person wants to listen. So the person speaking wants to speak and the person hearing wants to hear. It seems to me that's a stronger First Amendment interest. Well, the potential viewers in this case had other alternatives if they wanted to see the film. The film was available. Was this issue aired before the three-judge court the distinction between, say, putting something on a network TV and putting something on a viewer on demand that the listener has to opt into? No, indeed, the appellant in its complaint simply alleged affirmatively that his communication,

if aired on DVD, I mean, if aired on VOD, would fall within the statutory definition of electioneering communication. Counsel, before you run out here, can I, we haven't talked about the disclosure requirements yet. You understand the test to be that disclosure is not required if the names of those disclosed, if those people would be reasonably subject to reprisals? That's correct. This Court has recognized a constitutional exemption for two disclosure requirements in case, where disclosure would have a reasonable likelihood of leading to reprisal. How do we apply that test?

Is it inconceivable to you here that people contributing to such a clearly anti-Clinton advertisement are not going to be subject to reprisals? It seems unlikely that reprisals would occur because Citizens United, this is obviously a new film, but it is of a piece with communications that Citizens United has engaged in. That doesn't work because maybe Maybe they're going to change the nature of the documentaries that they fund or somebody who gave a contribution five years ago may decide, boy, I don't like what they're doing. I'm not going to give any more. I guess the point I was the fact that they've disclosed in the past by compulsion of law doesn't seem to answer the question

of whether they're going to be subject to reprisals. Well, the point was that they have disclosed in the past and have provided no evidence of reprisals. But I think the Court's decisions are clear that the burden is on the organization. to show a reasonable likelihood, at least to set the ball in motion. And the three-judge district court here said essentially what this court said in McConnell with regard to a variety of plaintiffs who included Citizens United. That is, the court said in McConnell and the three-judge district court here that the plaintiffs had made vague allegations of the general possibility of reprisals but had offered no concrete evidence that their own members.

But that seems to me you're saying they've got to wait until the horse is out of the barn. You can only prove that you're reasonably subject to reprisals once you've been a victim of reprisals. Well, I think the alternatives would be to say that disclosure requirements are categorically unconstitutional, which would be an extreme departure from this Court's prior precedence. So that's saying that the test in McConnell is unworkable, if you say the alternative is to say they're categorically. No, I mean, I think we think the test in McConnell is workable, that is, leave it up to the organization to establish particularized proof of a reasonable likelihood of reprisal. If you were going to reject...

If the Boy Scouts run an ad and they're subject to disclosure, are the donors to support that ad reasonably subject to reprisals? I mean, it would depend to some extent on the characteristics of the ad. Probably not. But I think if the two alternatives to the approach that the Court has taken previously would be first to say these requirements are unconstitutional across the board, or the court could say, as applied to organizations that engage in especially intemperate or extreme speech of the sort that might seem more likely to subject its proponents to reprisal,

the disclosure requirements are categorically unconstitutional there. I think that would be itself an anomalous and counterproductive content-based distinction if the mere fact of the extremity of your speech insulated you from a constitutional, from a requirement that would otherwise be constitutional. Before you sit down, any other? Thank you, counsel. Mr. Olson, you have four minutes remaining. Thank you, Mr. Chief Justice.

It is unquestionably the case that the government takes the position that any form of expressive advocacy can be prohibited if it's done by a corporation. They say that on page 25 and 26 of their brief, whether it would be books, yard signs, newspapers, or something in printed form, and it's only because Congress decided to address the most acute problem that they haven't, Congress didn't go ahead and decide to do that, which we submit would raise very, very serious constitutional questions, the same type of constitutional questions that we are talking about here. I agree with you about that. But I thought what saves this, many people thought it doesn't save it.

It's a whole thing's unconstitutional, the whole act. That isn't what I wrote or thought. So what saves this is, of course you can't prohibit all those things. What you do is put limitations on the payment for them. See that there are other ways of paying for it, say through PACs, and then limit very carefully the media that are affected and the times for which they are affected. Now, that's the statute before us.

And it's that, I think, you have to address. Precisely. And five justices in Wisconsin right to life made the point that the PAC mechanism is burdensome and expensive. There are briefs in this case that demonstrate how much it is, and it's easier if you have lots of money if you are a big corporation and you can afford a PAC or you already have one. So it's a burden on the least capable of community.

communicating. Mr. Olson, and I ask this question, you're bringing up Wisconsin right to life. Judge Randolph thought the Chief Justice's opinion in that case was controlling in this case. Do you think the Chief Justice's opinion in that case correctly stated the law? Of course. Do you? By definition.

Good answer. I want to be sure, because sometimes I don't think you're quite saying that. But if you would agree with that opinion is correct. What I am saying is, I don't. We accept the Court's decision in Wisconsin Right to Life to the extent that the Court did not get to this type of documentary where the issue distinction, the false dichotomy between issues and candidates. Did you accept the test that was stated in his opinion? No reasonable, not reasonably susceptible to any other interpretation.

Of course we do, Justice Stevens, but we submit a 90-minute discussion of various different issues are subject to all kinds of interpretation. And when you get a long exposition of issues that are important to the public, and someone says, the government says, well, we can prohibit it. And by the way, the government says, well, when we mean prohibit, we just, you can't use your corporate treasury funds. What they mean by prohibit is that they will put you in jail if you do it. They will put you in jail for five years.

That means prohibited. Now, what we're getting at here, when you're trying to make a 90-minute movie that discusses things that are important to the public during an election of the highest officer of the United States, many people will interpret that as critical, many people will interpret it as supportive. There are things all over the lot, so it's subject to lots of different interpretations. The other thing is, I heard Justice, I mean, Mr. Stewart say that if there's one minute at the beginning, it doesn't happen, it doesn't matter what the other 89 minutes are, we can prohibit it. Well, where is the person making a movie?

who wants to address the American public about something that's important to the American public. There isn't any question about that. Where does he edit his movie? What cuts, what does he leave on the drawing, on the cutting room floor so that he won't have to go to jail? He won't dare take the chance. Thank you, counsel. The case is submitted.