Home > Elections 2010 > Technology, Free Speech and the SCOTUS decision in Citizens United v. FEC

Technology, Free Speech and the SCOTUS decision in Citizens United v. FEC

Technology figured in today’s landmark Supreme Court decision in Citizens United v. FEC. The 5-4 decision removes limits on campaign spending by corporations, non-profits and unions and will result in a lot more money being poured into the political process, starting with the 2010 mid-term elections.  The decision also gives some insight into how the SCOTUS views the link between technology and the first amendment in political campaigns — and whether certain technologies should be treated differently than others when it comes to political speech.

Notable dicta from the majority opinion centers around the importance of technology in the decision to strike down campaign finance laws that date back to the Tillman Act of 1907:

…”Rapid changes in technology—and the creative dynamic inherent in the concept of free expression—counsel against upholding a law that re- stricts political speech in certain media or by certain speakers…”

The facts of this SCOTUS case centered around Hilary, the Movie, a 90 minute slashing critique and documentary about Hilary Clinton that was released during the 2008 Presidential race and funded by a conservative, DC-based nonprofit named Citizens United. Citizens United sought wider distribution of the movie through a cable on-demand service, but was blocked from doing so by the Federal Election Commission.  The issue before the court was whether a full-length movie fell within FEC regulations that prohibit corporations and unions from using their general treasury funds to fund “electioneering communications” through cable, broadcast or satellite transmission.  Surprisingly, the court sought to expand the inquiry further (for reasons you must read in their decision), choosing to issue a decision on whether any limit on campaign spending by corporations or unions is constitutional.

A tangential issue was whether to differentiate between video (or cable) on demand vs. broadcast services for purposes of electioneering communications. At oral argument, noting that consumers choose to watch on-demand programming just like they do DVDs, Justice Scalia remarked: “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.”

Today’s decision didn’t address the broadcast vs. VOD point directly, but given the dicta in this decision, we may see a different first amendment analysis for on-demand vs. broadcast political content.

And it also appears that the Court will continue to treat broadcast and internet content differently when it comes to disclaimer and disclosure requirements for political ads. In this decision, the Court rejected Citizen United’s claim that the FEC’s disclosure and disclaimer requirements were invalid because they are imposed on broadcast, but not Internet content.  As this part of the FEC’s rules were upheld, we still get to know who funds a particular broadcast ad and the candidate that ad supports.

No doubt about it, a big beneficiary of this decision will be the online advertising industry – particularly marketers and campaign strategists. And now that the money will flow even more freely, it will be interesting to see what form this new advertising takes.  My bet is on the long-form campaign documentary (a la Hilary, the Movie), with guest appearances by Hollywood stars and Beltway pundits, a good helping of human interest and a perfectly timed soundtrack.  Candidates must already be thinking about how to marry potential content into their social media plans.  And the rest of us are guaranteed to be humored or incensed (at least once), by something we see this fall – whether it’s on TV, on demand or on the web.

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