Will Michael Moore’s movie Fahrenheit 9/11 land him in jail? Maybe. Only time will tell.
Of course, Moore won’t end up behind bars because his movie criticizes George W. Bush. The First Amendment still exists, more or less. Moore may end up as a campaign-finance convict, guilty of illegally referring to a clearly identified candidate for federal office within 30 days of a primary (or 60 days of a general election).
To see how Moore might become a felon, we need to understand the case of David T. Hardy, the president of the Bill of Rights Educational Foundation, a nonprofit corporation in Arizona. Hardy is producing a documentary film entitled The Rights of the People, which concerns issues related to the Bill of Rights. The film apparently refers to several members of Congress up for reelection in 2004 and to President Bush. Hardy had hoped the Bill of Rights Educational Foundation would help pay for the marketing and distribution of the “The Rights of the People,” including advertising on TV and radio.
Hardy is a well-informed citizen. He knew enough to ask the Federal Election Commission whether his plans to market his film would fall under the strictures of campaign-finance law. As it turned out, his marketing plans were a potential felony. The FEC ruled that the ads were an “electioneering communication” because they mentioned candidates for national office. Federal law prohibits the Bill of Rights Education Foundation from paying for the ads. So, unless Hardy wants to pay for the marketing of the movie himself and thereafter to comply with the rules governing “electioneering communication” (disclosure and so on), the roll out of The Rights of the People will have to wait until after Election Day.
Moore’s situation is similar to Hardy’s. No one doubts Fahrenheit 9/11 refers to President George W. Bush, who is running for reelection. Presumably, the advertising for the movie will include references to President Bush. After all, that’s who the movie is about, and Moore’s attacks on President Bush and his family are the major appeal of the film for its target audience.
Broadcast, cable, or satellite ads are banned if they’re funded by a corporation or union, refer to a clearly identified federal candidate, and appear within 30 days of a primary or 60 days of a general election. That means Moore’s distributor, Lions Gate Films (a corporation) can’t run ads between July 30 and August 30 (the date of the Republican convention, which is treated as a primary in which Bush is a candidate), or between September 2 and the November 2 general election.
If Fahrenheit 9/11 shows up on broadcast, cable, or satellite TV after July 30, Moore may well be in big trouble unless he financed the movie himself. If a corporation financed the movie, Moore will have broken the law.
If individuals financed the movie, the ban on electioneering communications would not apply. But Moore’s movie still could not be “made in concert or cooperation with or at the request or suggestion of” Kerry, Kerry’s campaign, an agent of his campaign, a Democratic-party committee or their agents. To help with the movie, Moore has employed Chris Lehane, a high-ranking operative in Al Gore’s presidential bid. The chairman of the Democratic National Committee (along with six Democratic senators and a couple Democratic members of the House) showed up at the premiere of Fahrenheit 9/11 in Washington. After seeing the movie, the chairman of the DNC said, “I think anyone who goes to see this movie will come out en masse and vote for John Kerry. Clearly the movie makes it clear that George Bush is not fit to be president of this country.”
The movie might well appear to be cooperating with the Democratic presidential effort. In campaign finance, appearances are often tantamount to guilt. My advice to Michael Moore: Get yourself a good campaign-finance lawyer.
The election lawyer Robert Bauer recently wrote “there should not be a question that a documentary filmmaker can produce for public distribution a work highly critical (and more) of the President of the United States, or of any other political figure, without confronting a challenge from the Federal government.” Yet that question has been posed by Sen. John McCain and his allies, and none of us know the answer for certain.
It is ironic that campaign-finance restrictions, long a labor of the Left, have boomeranged toward Michael Moore. But it is not amusing. Conservatives who support limited government and political liberty should be outraged about this. Yes, Moore’s movie is obnoxious. But the remedy for bad speech is more speech. David Brooks has evoked Moore’s own words to bring the movie and the Democratic Establishment into disrepute. That’s the right strategy: More speech, not less. Besides, some of us may wish to say some obnoxious things about a President Kerry in a few months time. Should we have to ask the federal government for permission to say them?
Some Republicans are trying to get the FEC to go after Moore. The Moore story may degenerate into another chapter in the book How Republicans Learned to Love Campaign-Finance Restrictions.
That would be shortsighted and unprincipled. The protections of the First Amendment are for everyone. So, Free Michael Moore! And while you’re at it: Free the rest of us too.
–John Samples is director of the Center for Representative Government at the Cato Institute.