The Paradox Of Trump Threatening Documentary Filmmaker While Supporting Citizens United

from the fine-for-me,-not-for-anyone-else dept

I'm not sure if Donald Trump has ever officially weighed in on the famous Citizens United v. Federal Election Commission, but if he did, I'm guessing he would support that ruling wholeheartedly. After all, he recently hired the former President of Citizens United to be his deputy campaign manager. And, I know that people freak out about the term "Citizens United" and some believe it's the root cause of all evil in American politics today, but that's wrong. At its heart, that case was a First Amendment free speech case, about whether a group (Citizens United) could show a documentary film heavily critical of Hillary Clinton close to the 2008 election. We can all argue about the evils of campaign finance and dark money and super PACs, but there should be ways to fix that without banning movies.

Either way, it's quite ironic that with the former head of Citizens United helping to lead his campaign, Trump is now basically arguing against the very Citizens United ruling by threatening to sue lots of folks associated with a new documentary, called You've Been Trumped Too. Unfortunately, the filmmaker hasn't released the actual threat letters, so we can't see the details, but he claims that "Trump is threatening to sue movie theatres, reporters or anyone who repeats the allegations made in my new film." People Magazine claims it's seen the threat letters but chosen not to post them.

The documentary is actually the third in a series of documentaries that Anthony Baxter has made about Trump, mostly focusing on a family in Scotland that the Trump family has bullied and generally treated exceptionally badly while building a giant golf course where they lived. In response to the claimed threat, Baxter decided to stream the film live on Facebook last week. Most of the reviews I've read of the film basically say that there's not enough material to make a true feature film documentary, and that it's basically a one-note follow-up on the earlier films, trying to capitalize on the election.

But, either way, Baxter should be able to make and release his film without legal threats. And if Trump truly supported Citizens United, he'd agree. But, of course, like so many today, it appears that Trump is willing to support free speech when it serves his interests, but not when it serves others'. And, of course, the same goes for Hillary Clinton -- who has talked about overturning Citizens United. That's a bit unseemly, of course. Pledging to overturn a ruling that said a movie criticizing you could be released?

Nobody comes out of any of this looking good. Which, you know, is basically the theme of this election. Thankfully it's finally over tomorrow.

Filed Under: anthony baxter, campaign finance, citizens united, documentary, donald trump, free speech, so you've been trumped
Companies: citizens united

Citizens United, Recent Winner Of Free Speech Case, Tries To Silence Critics

from the free-speech-for-thee,-but-not-for-me? dept

Unless you've been living under a rock lately, you've heard about the Citizens United decision by the Supreme Court, which reiterated corporate personhood in certain circumstances -- specifically with regards to political campaign funding -- effectively freeing up companies to spend as much money as they wanted to support (or not support) political candidates. The ruling was quite controversial, and it's not at all surprising that a Facebook group popped up with the creative name "Citizens United Against Citizens United." Turns out that the Citizens United organization was none too happy about the criticism. Paul Alan Levy alerts us to the news that the new bastion of "free speech" is claiming that the Facebook group violates its trademark and is demanding the destruction of all documents bearing its mark.

Although we haven't seen this issue litigated in the context of Facebook, Citizens United's demand flies in the face of the many decisions holding that an Internet gripe site (or fan site) may use the trademark of the subject of the discussion as its domain name. Under Lamparello v. Falwell, 420 F.3d 309 (4th Cir. 2005), that's even the rule in the Fourth Circuit, where Citizens United is located. How can they possibly hope to win a case like that?

Wisconsin Democracy Campaign's argument would seem to be even stronger, because it is using "Citizens United" in its descriptive sense, and not as a mark. It seems doubtful that Citizens United the conservative group can prevent a group of citizens who are united to support or oppose a particular proposition from referring to their effort as Citizens United For X or Citizens United Against Y. (Otherwise, many groups that would have to change their names). It is especially hard to understand how any confusion about source could be expected to result from labeling a campaign "Citizens United Against Citizens United."

Interestingly, Citizens United asks Wisconsin Democracy Campaign to destroy all documents bearing the Citizens United trademark. If that demand were extended to the Supreme Court, could it succeed in wiping the Citizens United decision off the books?

Filed Under: citizens united, free speech, trademark
Companies: citizens united

Google For President? If Corporations Are People...

from the free-speech-and-its-consequences dept

A bunch of folks have sent in the Citizens United Supreme Court decision and asking for my opinion on it. The ruling came out last week when I was traveling, and I didn't have that much time to look at the details or think about what it all meant until now. It's one of those cases where I see both sides of the argument, but am troubled by what comes out of a ruling in either direction. There is a real worry of a First Amendment problem if you restrict any kind of speech -- but I do worry about giving corporations even greater power in influencing elections. But my real issue with the ruling goes back deeper, with the generally accepted concept that a corporation is a person. That seems like an even bigger problem, because the fact is that we don't actually treat a corporation like a person at all. A corporation does not get a vote. A corporation cannot be put in jail (yes, its executives or employees might be able to, but not the same thing). And a corporation may not run for office. This point was brought to my attention by my friend Jeff, who sent over a link to a story arguing (in a very much tongue-in-cheek manner) that if a corporation has the same rights as a person, why can't Google run for President.

That said, while I would remove the idea that a corporation is ever "a person," that doesn't change the fact that I would be careful about limiting any type of speech -- including a politically motivated movie, which was at the heart of this case. Instead, I tend to think that the problem is one of information (not money) asymmetry. And while it may appear idealistic, this is the sort of thing that the internet is helping to combat, even if it takes time, and there are some losses early on. In copyright policy, it's true that the entertainment industry has still been able to push through laws in its favor over the past few years, but a lot more people are paying attention to the issue, and the changes that are getting through are of much lower impact than what they used to regularly get through. I don't think that the entertainment industry would be able to push through the kind of massive sweeping changes that it has successfully pushed through in the past. Instead, I tend to agree with Julian Sanchez, in discussing a recent conversation with Larry Lessig, that points to a more organic way to respond to corporate influence on politics:

Look at it this way: We don't get draconian copyright policies because the RIAA and MPAA actually have more money, all told, than those of us who'd benefit from a more balanced intellectual property regime.  They're richer, of course, but there's a lot more of us. The problem is that their resources are already pooled, and they're far more acutely aware of which side their bread is buttered on. That's the asymmetry we need to address. And as Clay Shirky has so cogently argued, we may finally have the means to do so, because for the first time in human history, we have in the Internet (and Web 2.0 especially) a mass medium that is simultaneously good at enabling interactive conversations (as the telephone does) and groups (as magazines or television did).  The costs of processing and disseminating information have fallen dramatically over the past decade, and now the same is happening to the costs of organizing people and coordinating action.

That's why I think Lessig's focus on public finance as a silver bullet is less likely to bear fruit than an array of solutions that exploit transformative technology--something he's so keenly analyzed in his writing on Free Culture. My colleague Jim Harper's Washington Watch project, or the efforts of the folks at the Sunlight Foundation, are one part of the solution: Backroom deals are typically held in the back room for a reason. Sites like ActBlue and Slatecard are another, because they make it easier for a national audience to punish bad actors in their local races.

This doesn't mean that corporate influence has been -- or ever will be -- neutralized. But it does suggest that it's becoming easier for the voices of those actually impacted to speak up and make themselves heard. It will take a lot of effort -- and certainly, corporations are often a lot more tied into the levers of power, but there is more of an opportunity for groups of people to use information tools to their advantage, and to counter efforts by anyone, whether its corporations or individuals, to push through harmful legislation. It may seem idealistic (and, it is), but the unintended consequences of barring speech seems like it could be much worse.

Filed Under: campaign finance, citizens united, corporations, people, supreme court