The case involves a feature-length documentary entitled Hillary: The Movie, which was critical of Senator Clinton. The movie was produced by Citizens United, a conservative, not-for-profit advocacy group, which planned to distribute the movie via Video On Demand to digital cable subscribers. Because the proposed movie distribution fell within 30 days of the presidential primaries and mentioned Senator Clinton by name, its broadcast via Video On Demand was considered an “electioneering communication” under the Bipartisan Campaign Reform Act of 2002 (“BCRA”).
Citizens United sued the Federal Election Committee challenging BCRA’s constitutionality as applied to distribution of the movie through Video On Demand. During Oral Argument, several Justices were troubled by the Deputy Solicitor General’s suggestion that the government could regulate the distribution of a printed book or a book downloaded to a Kindle if the book contained “express advocacy” or its functional equivalent.
Simpson Thacher’s brief on behalf of Hachette and HarperCollins argued that BCRA’s restrictions do not extend to books in any form and challenged the government’s sweeping suggestion that books containing electoral advocacy are caught by campaign finance legislation. The case has engendered significant debate and interest, and the decision is expected to play a key role in the development of First Amendment law in the context of electoral speech.
The Simpson Thacher team consisted of Michael Chepiga, Jamie Gamble, Janet Whittaker, Agnès Dunogué, Michelle Hertz, Mickey Martinez, Hayley Urkevich, and summer associates, Misan Ikomi and Diana Wielocha.