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Duke Law has a more careful, legal, analysis of this case at http://www.law.duke.edu/journals/djc...howitem&id=108, concluding with the following:
Chief Justice Roberts and Justice Alito will likely apply the Federal Election Commission v. Wisconsin Right to Life, Inc. to feature-length films, but make it clear that feature-length films containing the WRTL factors (mentioning an election, taking a position on a candidate's character, etc.) may nevertheless be interpreted as something other than the functional equivalent of express advocacy depending on the film's substantive content. They may even develop additional factors to consider when applying the WRTL test to feature-length films. The Austin v. Michigan Chamber of Commerce concern that corporate wealth could corrupt the electoral process will be tantamount to their analysis. They will likely hold that where there is a self-selecting audience, corruption of the electoral process is less of a risk and therefore the government would not further a compelling interest by banning the film.
Justices Scalia, Thomas, and Kennedy will probably concur in the judgment but continue to maintain that McConnell v. Federal Election Commission and Austin should be overruled, which would free all independent corporate expenditures from speech restrictions and make the VOD broadcast of Hillary prima facia acceptable.
If a 5-4 majority results, Justices Roberts and Alito will be the authors of the leading opinion and their judgment will be the law for applying BCRA section 203 to films like Hillary. It is hard to predict how Justices Souter, Ginsberg, Stevens, and Breyer will vote. They are generally favorable to the restrictions imposed by BCRA section 203,127 but they may be persuaded that the element of viewer choice changes the calculus by eliminating or reducing the interest the government has in restricting such speech.
In any event, Citizens will likely prevail in the Supreme Court, freeing it and similar groups -- on both sides of the political spectrum -- to produce and distribute films like Hillary to self-selecting audiences during future pre-election periods. This would be a desirable result because there are plenty of biographical targets in Washington whose political merit and professional credentials, or lack thereof, should not be shielded by campaign finance laws that derogate the First Amendment.
P.S. What the heck? How did my post, intended to be about #5 in this thread, end up ahead of jtabeb's orginal post, now lowered to #2? Me thinks the iTulip forum software database was out partying too late last night.
Chief Justice Roberts and Justice Alito will likely apply the Federal Election Commission v. Wisconsin Right to Life, Inc. to feature-length films, but make it clear that feature-length films containing the WRTL factors (mentioning an election, taking a position on a candidate's character, etc.) may nevertheless be interpreted as something other than the functional equivalent of express advocacy depending on the film's substantive content. They may even develop additional factors to consider when applying the WRTL test to feature-length films. The Austin v. Michigan Chamber of Commerce concern that corporate wealth could corrupt the electoral process will be tantamount to their analysis. They will likely hold that where there is a self-selecting audience, corruption of the electoral process is less of a risk and therefore the government would not further a compelling interest by banning the film.
Justices Scalia, Thomas, and Kennedy will probably concur in the judgment but continue to maintain that McConnell v. Federal Election Commission and Austin should be overruled, which would free all independent corporate expenditures from speech restrictions and make the VOD broadcast of Hillary prima facia acceptable.
If a 5-4 majority results, Justices Roberts and Alito will be the authors of the leading opinion and their judgment will be the law for applying BCRA section 203 to films like Hillary. It is hard to predict how Justices Souter, Ginsberg, Stevens, and Breyer will vote. They are generally favorable to the restrictions imposed by BCRA section 203,127 but they may be persuaded that the element of viewer choice changes the calculus by eliminating or reducing the interest the government has in restricting such speech.
In any event, Citizens will likely prevail in the Supreme Court, freeing it and similar groups -- on both sides of the political spectrum -- to produce and distribute films like Hillary to self-selecting audiences during future pre-election periods. This would be a desirable result because there are plenty of biographical targets in Washington whose political merit and professional credentials, or lack thereof, should not be shielded by campaign finance laws that derogate the First Amendment.
(that's a given
, we're fucked, I agree.):mad:
:p
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