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Court appeal set on promos of campaign film

Citizens United, a Washington-based conservative advocacy group, is moving to appeal to the Supreme Court — and seeking expedited review — in a case testing its right to run promotional ads for a 90-minute film critical of New York Senator and presidential candidate Hillary Rodham Clinton.

The organization formally filed a notice of appeal Wednesday in U.S. District Court, and plans to file its actual appeal in the Supreme Court on Tuesday.  James Bopp, Jr., Citizen United’s counsel, said he will also file a motion asking the Court to expedite the case in hopes of having it heard and decided during the current Court Term.

A special three-judge U.S. District Court refused on Tuesday to clear the way for unrestricted airing of the film itself and three ads that promote the film, titled “Hillary: The Movie.”  This is the way the District Court described the production: “The Movie is susceptible of no other interpretation than to inform the electorate that Senator Clinton is unfit for office, that the United States would be a dangerous place in a President Hillary Clinton world, and that viewers should vote against her.”

With that content, the District Court said, the film is a form of “electioneering communication” that a 2002 federal campaign finance law forbids being aired on radio and TV in the period before a primary or general election of federal candidates, including those running for president, if the broadcast is paid for by corporation funds including funds of a non-profit corporation.

 Citizens United has already released the film as part of a campaign to put the film in theaters, on TV-on-demand broadcasts, and in stores as DVDs. It has also prepared three ads to promote the film, to be aired prior to state caucuses and primaries, before the Democratic national convention and before the general election in November, if Sen. Clinton becomes the Democratic nominee.  It has not yet run any of the three ads because of legal uncertainty.

In a lawsuit filed in District Court in mid-December, Citizens United contended that it is unconstitutional to treat the film’s TV showings and its ads as the type of broadcasts covered by the 2002 law.  The Federal Election Commission told the District Court as the lawsuit unfolded that the ads may be aired as planned because they come within an exception the FEC has fashioned in a new rule.

Even though it is free to run the ads, Citizen United’s lawsuit asserted that it is unconstitutional to require the organization to disclose the names and addresses of anyone who contributed $1,000 or more to pay for such an ad, and to require a disclaimer as to who is responsible for the content of the ads.  Those provisions apply, the FEC has said, even if the ads themselves are not banned.

The District Court concluded that Citizens United had not made a sufficient showing that it would be harmed by the requirements laid down for the three ads.  Thus, the Court refused to issue a preliminary injunction to bar enforcement of the disclosure and disclaimer requirements for the ads while the lawsuit proceeds through the Court toward a final ruling. It is that refusal that will form the core of the appeal to the Supreme Court.  While the District Court also refused to bar the enforcement of the “electioneering communications” ban against the movie itself, that will not be at issue in the currently planned appeal.

Citizens United has posted the contents of the three ads at