Given the international public’s unique readiness to equate “business” with “criminal,” it’s auspicious timing for the question of corporate money’s role in politics to return to the Supreme Court.
The question put before them, Should contemporary campaign finance laws ever put at risk our noble First Amendment? What is the Court’s place if a corporation makes a film supporting one candidate over another? The slope seems classically slippery.
The Times coverage of the Hillary Clinton “slashing documentary” perhaps said more about the Court, and the place it continues to occupy in American life, than it does about the threat of banned books—or, even, the threat of banned tacky bio-pics of Presidential candidates. Justice Breyer’s note of the Clinton film that “It is not a musical comedy” was emblematic of what we think about when we think about judicial restraint: it should be leveled with wit, subtlety, and strength. Yet, are works of art which take—or twist—views on political candidates at risk? Likely, not. The First Amendment is strong. And while a Farenheit 911 was funny, did it really rock the polls?
Remember obscenity. There were years on the Court when the question of what was obscene was necessarily defined as wholly and, judicially speaking, subjective (if, infamously, recognizable). In The Brethren, Bob Woodward and Scott Armstrong’s close look at the Court over seven terms (1969-1975), the authors describe what was known as “Movie day.”
“Movie day was the humorous highpoint of most terms. Year after year, several of the Justices and most of the clerks went either into a basement storeroom or to one of the larger conference rooms to watch feature films that were exhibits in obscenity cases that had been appealed to the Court. Douglas, and Black during his years on the Court, never went. In their view, nothing could be banned. ‘If I want to go see that film, I should pay my own money,’ Black once said, and he wondered aloud why nine men, many in their seventies, should make judgments about sexuality . . . Burger too preferred not to go . . . During his later years, Harlan watched the films from the first row, a few feet from the screen, able only to make out the general outlines. His clerk or another Justice would describe the action. ‘By Jove,’ Harlan would exclaim. ‘Extraordinary.’ Clerks frequently mocked Stewart’s approach to obscenity, calling out in the darkened room: ‘That’s it, that’s it, I know it when I see it.’”
A Movie day for political documentaries might be even tougher to judge (if less stressful). In 2009, any Government claiming that it possesses the power to “ban” any work of art is deeply troubling, and tough to grasp. Yet if the phrase “corporate-backed” provokes reaction today it’s perhaps not surprising that some congressmen might take steps to try and “claw-back” the power of those, as it were, creative contributions, if not the actual contributions themselves.
Justice Scalia had the finest line of the day. “I’m a little disoriented,” he said.