No. 08-205 

IN THE

Supreme Court of the United States 

CITIZENS UNITED, 

 Appellant, 

 v. 

FEDERAL ELECTION COMMISSION, 

 Appellee. 

_________________________ 

On Appeal From The United States District Court 

For The District Of Columbia 

_________________________ 

Brief Amicus Curiae of The Reporters 

Committee for Freedom of the Press 

in Support of Appellant 

Lucy A. Dalglish 

Counsel of Record 

Gregg P. Leslie 

John Rory Eastburg 

Hannah Bergman 

Samantha Fredrickson 

The Reporters Committee for 

 Freedom of the Press 

1101 Wilson Blvd., Suite 1100 

Arlington, Va. 22209 

(703) 807-2100 
i

TABLE OF CONTENTS 

TABLE OF AUTHORITIES ....................................... ii 

STATEMENT OF INTEREST ................................... 1 

SUMMARY OF ARGUMENT .................................... 2 

ARGUMENT............................................................... 3 

I. Criticism and advocacy of candidates for 

office has always been a role of the 

American press...................................................... 3 

II. The Court has long safeguarded the 

editorial independence of the news media. .......... 5 

III. By allowing the suppression of a documentary 

 film, the district court obliterated the 

 bright-line distinction between commentary 

 and prohibited express advocacy. ........................ 8 

IV. The news exemption alone provides inadequate 

 protection, because news media commentary is 

 increasingly distributed in ways the exemption 

 does not contemplate.......................................... 10 

CONCLUSION.......................................................... 12 
ii

TABLE OF AUTHORITIES

CASES 

Austin v. Mich. Chamber of Commerce, 

494 U.S. 652 (1990) ............................................ 7 

CBS v. Democratic National Committee, 

412 U.S. 94 (1973)............................................... 6 

Buckley v. Valeo, 

424 U.S. 1 (1976)................................................. 9 

McConnell v. FEC, 

540 U.S. 93 (2003) ....................................passim

Miami Herald Publ’g Co. v. Tornillo, 

 418 U.S. 241 (1974) ........................................ 6, 7 

Mills v. Alabama, 

384 U.S. 214 (1966) .................................... 1, 5, 6 

NAACP v. Button, 

371 U.S. 415 (1963)............................................. 8 

New York Times Co. v. Sullivan, 

376 U.S. 254 (1964) ............................................ 2 

Pittsburgh Press Co. v. Human Relations 

Comm'n, 413 U.S. 376 (1973) ............................ 7

Shulman v. Group W Productions, Inc., 

18 Cal. 4th 200 (1998)....................................... 12 
iii

Thomas v. Collins, 

323 U.S. 516 (1945)............................................. 9 

STATUTES AND REGULATIONS

2 U.S.C. § 431.............................................................. 1 

2 U.S.C. § 434.....................................................passim

OTHER AUTHORITY

Business Journal (Milwaukee, Wis.), 

WTMJ-TV launches News on 

Demand' with Time Warner 

Cable, April 7, 2006 .......................................... 11 

David Bauder, TV News Goes All Out 

Online, Too, The Wash. Post, 

January 12, 2009, at C5 .................................. 10

David T. Cook, Our First Century, 

Christian Science Monitor, 

Nov. 25, 2008..................................................... 10 

David Lieberman, TiVo diversifies its 

lineup with Web video, USA Today, 

June 7, 2006 at B1. ........................................... 11 

Edward J. Larson, The Tumultuous 

Election of 1800, America’s First 

Presidential Campaign: A 

Magnificent Catastrophe (2008). ........................ 4 
iv

FEC Advisory Op. 2004-30 ....................................... 11 

Jonathon Elliot, Debates on the Federal 

 Constitution (2d ed. 1876).. ................................ 6 

N.Y. Times, Endorsements through the Ages, 

http://www.nytimes.com/ 

interactive/2008/10/23/opinion/ 

20081024-endorse.html ...................................... 4 

Philip Hamburger, Matters of State: A 

 Political Excursion (2003) .................................. 5 

San Antonio Express-News, Replays of 

Local News Available on Cable, 

Nov. 11, 2005, at E1.......................................... 11 

W. David Sloan & Lisa Mullikin Parcell 

 American Journalism: History, 

Principles, Practices (2002). ........................... 3, 4 

William Blackstone, Commentaries on the 

Laws of England (1769)...................................... 6
1

STATEMENT OF INTEREST1

The Reporters Committee for Freedom of the 

Press is a voluntary, unincorporated association of 

reporters and editors that works to defend the First 

Amendment rights and freedom of information interests of the news media. The Reporters Committee 

has provided representation, guidance and research 

in First Amendment and Freedom of Information Act 

litigation since 1970. 

The Reporters Committee has an interest in ensuring that the Bipartisan Campaign Reform Act of 

2002 (“BCRA”), 2 U.S.C. § 431 et seq., is not used to 

suppress this feature-length political documentary, 

as it would be an “obvious and flagrant abridgement 

of the constitutionally guaranteed freedom of the 

press.” Mills v. Alabama, 384 U.S. 214, 219 (1966). 

                                                           

1 Pursuant to Sup. Ct. R. 37, counsel for the Reporters Committee declare that they authored this brief in total with no assistance from the parties; that no individuals or organizations 

made a monetary contribution to the preparation and submission of this brief; that counsel for all parties were given timely 

notice of the intent to file this brief; and that written consent of 

all parties to the filing of the brief amicus curiae (aside from 

those who have given general consent to all amici) has been 

filed with the Clerk. 
2

SUMMARY OF ARGUMENT

Amicus curiae The Reporters Committee for 

Freedom of the Press (the “Reporters Committee”) 

urges the Court to reverse the decision below and 

clarify that the suppression of a feature-length political documentary is an impermissible abridgment of 

the First Amendment’s protection of freedom of the 

press. 

Throughout American history, the news media’s 

coverage of government affairs has included commentary as well as reporting. This commentary “include[s] vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” New York Times Co. v. Sullivan, 376 U.S. 254, 

270 (1964) It also has included endorsements that 

expressly advocate the election of named candidates. 

Time and again, the Court has protected the freedom 

of the press to publish such commentary. 

The Bipartisan Campaign Reform Act of 2002 

(“BCRA”) does not purport to suppress news media 

commentary – indeed, it includes an express exemption for media commentary. 2 U.S.C. § 434(f)(3)(B)(i). 

This exemption, however, excludes a growing number of non-traditional journalists distributing their 

work in new ways, including the video on-demand 

technology used by Appellant. The incompleteness of 

the news exemption has had little import until now, 

given the clear-cut distinction between the archetypical 30-second political advertisement and the 

sort of commentary that journalists have historically 

provided. But the decision below, suppressing a documentary that is objectively indistinguishable from 
3

other news media commentary, removes this intuitive bright-line distinction that allowed journalists to 

do their jobs without fear of the criminal penalties 

associated with violating Federal Election Commission (“FEC”) regulations. By criminalizing the distribution of a long-form documentary film as if it were 

nothing more than a very long advertisement, the 

district court has created uncertainty about where 

the line between traditional news commentary and 

felonious advocacy lies. All that is certain is that the 

line will depend on a subjective determination of the 

FEC. 

ARGUMENT

I. CRITICISM AND ADVOCACY OF 

CANDIDATES FOR OFFICE HAS ALWAYS 

BEEN A ROLE OF THE AMERICAN PRESS. 

Appellant produced and sought to distribute 

Hillary: The Movie – a critical, feature-length documentary about Senator Hillary Clinton. Hillary: The 

Movie does not differ, in any relevant respect, from 

the critiques of presidential candidates produced 

throughout the entirety of American history. In every 

American election since George Washington’s uncontested bid for the presidency in 1789, the press has 

reported on the candidates’ qualifications for office, 

distributing commentary that often attacks one candidate and favors another. See John Allen Hendricks 

& Shannon K. McCraw, Coverage of Political Campaigns, in American Journalism: History, Principles, 

Practices 181 (W. David Sloan & Lisa Mullikin Parcell eds., 2002). Though the method of news delivery 
4

has changed, the news media’s long tradition of taking stances for and against candidates has not. Id.

The simplest example of this is the editorial endorsement. Since at least the 1800 presidential race, 

American newspapers have endorsed candidates and 

provided commentary praising their favored candidate (and often denigrating the opponent). Edward J. 

Larson, The Tumultuous Election of 1800, America’s 

First Presidential Campaign: A Magnificent Catastrophe 206-07 (2008). In every American presidential 

election, newspapers have played an important role 

by advocating for endorsed candidates.2 

For just as long, the news media has criticized 

candidates for office, often publishing indictments of 

their experience and qualifications. In 1824, often 

considered the first election in which the candidates 

actively campaigned against one another, newspapers critiqued the backgrounds of candidates John 

Quincy Adams and Andrew Jackson. See Hendricks 

& McCraw, supra, at 181. Similarly, Edward R. Murrow’s See it Now (sponsored by Alcoa Inc.) in 1954 

essentially accused Senator Joseph McCarthy of 

treason, asserting that “[t]he actions of the junior 

Senator from Wisconsin have caused alarm and dismay amongst our allies abroad, and given considerable comfort to our enemies.” See Philip Hamburger, 

Matters of State: A Political Excursion 91 (2003). 

                                                           

2 See, e.g., Endorsements through the Ages, 

http://www.nytimes.com/interactive/2008/10/23/opinion/2008102

4-endorse.html (reprinting New York Times presidential endorsements from 1860 to the present). 
5

Half a century later, Hillary: The Movie criticized 

Senator Hillary Clinton’s qualifications and fitness 

for office – providing precisely the type of commentary the American news media has always provided. 

Like an increasing number of media organizations, 

Appellant sought to distribute its documentary using 

new technology. Editorial tastes and political affiliations aside, the only objective distinction between the 

critiques of Senators Adams, McCarthy, and Clinton 

is the medium in which each was distributed. 

II. THE COURT HAS LONG SAFEGUARDED 

THE EDITORIAL INDEPENDENCE OF 

THE NEWS MEDIA 

The BCRA excludes from regulation, among other 

things, speech that “[a]ppears in a news story, commentary, or editorial distributed through the facilities of any broadcast, cable, or satellite television or 

radio station, unless such facilities are owned or controlled by any political party, political committee, or 

candidate.” 2 U.S.C. § 434(f)(3)(B)(i). This news exemption recognizes that editorial regulation of the 

news media would muzzle “one of the very agencies 

the Framers of our Constitution thoughtfully and deliberately selected to improve our society and keep it 

free.” Mills, 384 U.S. at 219.

This nation was founded on the idea that “[t]he 

liberty of the press is ... essential to the nature of a 

free state,” McConnell v. FEC, 540 U.S. 93, 286 n. 17 

(2003) (Thomas, J., concurring in part and dissenting 

in part) (quoting 4 W. Blackstone, Commentaries on 

the Laws of England 151 (1769)), and a free press is 

“one of the greatest bulwarks of liberty.” Id. at 286 
6

(quoting 1 J. Elliot, Debates on the Federal Constitution 335 (2d ed. 1876)). 

Recognizing these principles more than forty 

years ago, the Court invalidated an Alabama law 

that made it a crime for newspapers to publish editorials on Election Day, finding “practically universal 

agreement that a major purpose of [the First] 

Amendment was to protect the free discussion of 

governmental affairs,” which “of course includes discussions of candidates.” Mills, 384 U.S. at 218. The 

Court concluded that it would be “difficult to conceive 

of a more obvious and flagrant abridgement of the 

constitutionally guaranteed freedom of the press” 

than a criminal statute that “silences the press at a 

time when it can be most effective.” Id. at 219. 

The Court reiterated the need for editorial autonomy in Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 

241 (1974). Tornillo struck down “right of access” 

laws intended to encourage diverse viewpoints in the 

media, refusing to “intru[de] into the function of editors” by interfering with “the exercise of editorial 

control and judgment.” Id. at 258. The Court ruled 

that “[t]he choice of material to go into a newspaper 

... and treatment of public issues and public officials 

— whether fair or unfair — constitute the exercise of 

editorial control and judgment,” adding that “[i]t has 

yet to be demonstrated how governmental regulation 

of this crucial process can be exercised consistent 

with First Amendment guarantees of a free press as 

they have evolved to this time.” Id.; see also CBS v. 

Democratic National Committee, 412 U.S. 94, 117 

(1973) (plurality opinion) (“[t]he power of a privately 

owned newspaper to advance its own political, social, 
7

and economic views is bounded by only two factors: 

first, the acceptance of a sufficient number of readers 

– and hence advertisers – to assure financial success; 

and, second, the journalistic integrity of its editors 

and publishers”); Pittsburgh Press Co. v. Human Relations Comm’n, 413 U.S. 376, 391 (1973) (“we reaffirm unequivocally the protection afforded to editorial judgment and to the free expression of views on 

these and other issues, however controversial”). 

Mindful of this constitutional interest in “ensur[ing] that the law does not hinder or prevent the 

institutional press from reporting on, and publishing 

editorials about, newsworthy events,” several federal 

statutes have drawn a distinction “between corporations that are part of the media industry and other 

corporations that are not involved in the regular 

business of imparting news to the public.” McConnell, 540 U.S. at 208 (quotation omitted). 

Campaign finance statutes have likewise drawn 

this distinction. See Austin v. Mich. Chamber of Commerce, 494 U.S. 652, 667 (1990) (statutes may exempt media companies from campaign finance restrictions because of “the unique role that the press 

plays in informing and educating the public, offering 

criticism, and providing a forum for discussion and 

debate”); id. at 712 (Kennedy, J., dissenting) (“It is 

beyond peradventure that the media could not be 

prohibited from speaking about candidate qualifications.”); McConnell, 540 U.S. at 156 n.51 (“Congress 

could not regulate financial contributions to political 

talk show hosts or newspaper editors on the sole basis that their activities conferred a benefit on the 

candidate”); id. at 355 (Rehnquist, C.J., dissenting in 
8

part) (doubting “the Court would seriously contend 

that we must defer to Congress’ judgment if it chose 

to reduce the influence of political endorsements in 

federal elections”). 

III. BY ALLOWING THE SUPPRESSION OF A 

DOCUMENTARY FILM, THE DISTRICT 

COURT OBLITERATED THE BRIGHTLINE DISTINCTION BETWEEN 

COMMENTARY AND PROHIBITED 

EXPRESS ADVOCACY 

Congress contemplated the BCRA governing what 

it saw as a surge of political advertisements flooding 

the airwaves. McConnell, 540 U.S. at 260 (Scalia, J., 

concurring in part and dissenting in part) (“the most 

passionate floor statements during the debates on 

this legislation pertained to so-called attack ads”). 

Likewise, earlier decisions upholding the BCRA focused on traditional 30-second political advertisements. See id. at 207 (discussing a “virtual torrent of 

televised election-related ads”). 

Regulation of traditional political advertising, 

whatever its other constitutional infirmities, has 

posed little risk of affecting editorial endorsements or 

other news media commentary. As long as the distinction between regulated advertising and exempt 

news commentary was relatively intuitive and objective, it provided the “breathing space” reporters need 

to perform their constitutionally-protected role. See 

NAACP v. Button, 371 U.S. 415, 433 (1963). Reporters could do their jobs without worrying that an endorsement or exposé might lead to felony charges if 

the FEC deemed that it was too laudatory or too 
9

critical of a candidate for office. But c.f. McConnell, 

540 U.S. at 284 (Thomas, J., concurring in part and 

dissenting in part) (“One would think that The New 

York Times fervently hopes that its endorsement of 

Presidential candidates will actually influence people. What is to stop a future Congress from determining that the press is ‘too influential,’ and that the ‘appearance of corruption’ is significant when media organizations endorse candidates or run ‘slanted’ or 

‘biased’ news stories in favor of candidates or parties?”). 

The decision below creates uncertainty, replacing 

a bright-line distinction with the subjective determinations of the FEC. Such an uncertain line between 

the constitutionally-protected and the felonious “offers no security for free discussion,” and thus “compels the speaker to hedge and trim.” Buckley v. 

Valeo, 424 U.S. 1, 43 (1976) (quoting Thomas v. 

Collins, 323 U.S. 516, 535 (1945)). Nor is the worry of 

FEC action speculative, since the traditional news 

media regularly engages in “express advocacy” by 

explicitly urging readers or viewers to vote for an endorsed candidate. 

IV. THE NEWS EXEMPTION ALONE 

PROVIDES INADEQUATE PROTECTION, 

BECAUSE NEWS MEDIA COMMENTARY 

IS INCREASINGLY DISTRIBUTED IN 

WAYS THE EXEMPTION DOES NOT 

CONTEMPLATE. 

With the FEC purporting to regulate even traditional news media commentary, journalists who wish 

to advocate or criticize a candidate are left to rely 
10

only on the news media exemption. See 2 U.S.C. § 

434(f)(3)(B)(i). But the exemption applies only to 

speech that “[a]ppears in a news story, commentary, 

or editorial distributed through the facilities of [a] 

broadcast, cable, or satellite television or radio station.” Id. A growing number of journalists distribute 

their work in ways that do not appear to fall within 

this exemption. 

The technology journalists use to disseminate 

their content is rapidly changing, and there is an accompanying resurgence in independent content – 

blogs, documentaries, non-profit journalism, and 

niche publications of many sorts. For example, many 

newspapers have been forced by the economy and 

new technology to publish only in electronic formats. 

See, e.g., David T. Cook, Our first century, Christian 

Science Monitor, Nov. 25, 2008. Even news networks 

such as ABC and CBS are supplementing their 

broadcasts of Barack Obama’s inauguration with additional Internet coverage. See David Bauder, TV 

News Goes All Out Online, Too, The Wash. Post, 

January 12, 2009, at C5. 

Likewise, news reporting in one of its classic 

forms – the 30 minute local television newscast – is 

now often distributed in the same fashion as Appellant planned to distribute Hillary: The Movie. Local 

television stations throughout the country have contracted with local cable providers to distribute their 

newscasts via video on-demand – the same technology that Citizens United sought to use in this case. 

See, e.g., WTMJ-TV launches ‘News on Demand’ with 

Time Warner Cable, Business Journal (Milwaukee, 

Wis.), April 7, 2006; Replays of local news available 
11

on cable, San Antonio Express-News, Nov. 11, 2005, 

at E1. 

Other documentary films are likewise distributed 

via video on-demand, including Michael Moore’s 

Fahrenheit 9/11. See FEC Advisory Op. 2004-30 

(Smith, concurring) (“under the expansive definition 

of ‘express advocacy’ favored by some of my colleagues, the production and promotion of Michael 

Moore’s movie Fahrenheit 9/11 may have been 

banned completely, if these activities were financed 

by corporations”). But the decision below would exclude these from the media exemption as well. 

Nor is the example of video on-demand distribution unique. As technology evolves, more distribution 

platforms will fall beyond the scope of the media exemption as interpreted by the FEC. For example, 

subscribers to TiVo, a service that allows households 

to digitally record television shows, can access video 

content from The New York Times on their television 

sets. See David Lieberman, TiVo diversifies its lineup 

with Web video, USA Today, June 7, 2006 at B1. If 

The Times posts endorsements and commentary – 

what many would call the quintessential example of 

the American press – it may run the risk of criminal 

liability because it is not clear that such content 

would be “distributed through the facilities of any 

broadcast, cable, or satellite television or radio station.” See 2 U.S.C. § 434(f)(3)(B)(i). 
12

CONCLUSION

Many editors would choose not to run the type of 

commentary seen in Hillary: The Movie for a variety 

of reasons – its political viewpoint, its length, or its 

tone, for example. These editorial decisions, though, 

cannot create legally meaningful distinctions without 

forcing the courts to “sit as superior editors of the 

press.” See Shulman v. Group W Productions, Inc., 18 

Cal. 4th 200, 229 (1998). 

Justice Thomas in McConnell warned of the risk 

that overbroad campaign finance regulations pose to 

the news media, saying that would-be censors of the 

press “need only argue that the press ‘capacity to 

manipulate popular opinion’ gives rise to an ‘appearance of corruption,’” and that “laws regulating media 

outlets in their issuance of editorials would be upheld under the” Court’s opinion in McConnell. 540 

U.S. at 285 (Thomas, J., concurring in part and dissenting in part). The court below has made this a reality, directly suppressing the type of political commentary that has long been the right and responsibility of the news media. For this reason, that application of the BCRA to Hillary: The Movie is an unconstitutional abridgment of the First Amendment’s 

protection for freedom of speech and of the press. 
13

Respectfully submitted, 

Lucy A. Dalglish 

 Counsel of Record 

Gregg P. Leslie 

John Rory Eastburg 

Hannah Bergman 

Samantha Fredrickson 

The Reporters Committee 

 for Freedom of the Press 

1101 Wilson Blvd., Ste. 1100 

Arlington, VA 22209-2211 

(703) 807-2100 

January 15, 2009