Justice Kennedy Goes to the Movies

smith goesThose industrious enough to reach the final paragraphs of the recent opinion of the Court in Citizens United v. Federal Election Commission (2010) might have been surprised to find Justice Kennedy discussing Mr. Smith Goes to Washington (1939).  A Hollywood classic directed by Frank Capra, the film is the fictional story of a handpicked bumpkin Senator played by Jimmy Stewart, who sees the light, dramatically filibusters, and in the end teaches the Congress how to behave.  Justice Kennedy’s argument seems to be that if the campaign-related indictment of Hillary Clinton in the film titled Hillary: The Movie could be suppressed, the same fate could befall a beloved work such as Mr. Smith Goes to Washington.

The two films’ only similarity seems to be that they are indeed films.  One film is fictional, but the other attacks an actual Senator and Presidential candidate.  One is designed to entertain, but the other is designed to influence an election.  And most importantly, one is a work produced by the culture industry designed to make a profit, but the other is a work funded from corporate profits designed to change opinions. 

Are Justice Kennedy and the other members of the Supreme Court majority incredibly unsophisticated in their understanding of popular culture and politics, or is their analogy disingenuous?  Extending the inquiry, might a comparable question be posed regarding the Citizens United opinion as a whole?  The Supreme Court’s majority might be so oblivious as to think that corporations have the full panoply of First Amendment rights and that their financially self-serving broadsides are matters of free speech that enrich democracy.  Then, again, the majority might simply hope it can trick us into believing that.

This Post Has 4 Comments

  1. Martin Tanz

    I will charitably go with disingenuous. If Justice Kennedy and the others in the majority actually had trouble distinguishing fact from fiction, I believe impeachment would be in order for Kennedy.

    I wonder, though, about what you say. When I was sworn in at the Supreme Court back in ’03, then-Justice Sykes spoke to our class and evoked Atticus Finch. It wasn’t just a passing reference either, she went on and on about it. Now, evoking a fictitious legal character is fine as things go, but I did wonder that day whether Justice Sykes ever actually represented a Tom Robinson in her distinguished career.

  2. Mike Keepman

    Martin, thank God for the smart and caring people like you.

  3. Richard M. Esenberg

    As for Martin’s question, I first met Diane Sykes when we were young lawyers representing inmates in class actions challenging their conditions of confinement. She was representing the inmates at Taycheeda. My clients were incarcerated at Green Bay. We compared notes.

    As for David’s question, I would not have used Mr.Smith as an example, but the distinction between Citizens United and Mr. Smith is not as easy as it might seem. He points out that Mr. Smith was seen as an attack on Congress and it is not hard to imagine a film that presented a fictionalized – but transparent – portrayal of a candidate for public office during election season. Under the rationale of Austin, could Congress conclude that dissemination of the firm ought to be prohibited.

    Or what if the film actually mentions a candidate for public office? Assume that Oliver Stone had put out “W” during the fall of 2004? At the initial argument in Citizens United, the government took the position that Congress could ban corporations (like, say, Times Books) from publishing books about candidates during the McCain-Feingold blackout period.

  4. Jacob Stamm

    I would argue that the people making movies in the time of Mr. Smith or today are not looking strictly at entertainment value of their films and how profitable they can be

    To argue that this attempt to influence an election through film-making is an unprecedented foray and is somehow reprehensible takes a very short memory. Look back no further than Michael Moore’s “Farenheit 911”, released in June 2004, as a fairly obvious example.

    To use source of funding as an arguement neglects the fact that a large (albeit decreasing) percentage of films are produced by giant companies such as MGM, Fox, etc. How does the production of these “mainstream” and allegedly non-political films differ?

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