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Imagine a presidential candidate you feel is more deserving of ridicule and mockery than the presidency. Imagine wanting to make a film criticizing and lampooning that candidate. Imagine wanting to attract the most viewers and generate as much attention as possible by releasing the film in the middle of election season.
That’s what Funny or Die recently did with current Republican frontrunner Donald Trump in the satirical film, “Funny or Die Presents Donald Trump’s The Art of the Deal: The Movie.” It’s also what Citizens United did with Hillary Clinton, albeit with fewer laughs, in 2008’s “Hillary: The Movie,” the subject of the famous – or infamous, depending on your perspective – 2010 Supreme Court ruling, Citizens United v. FEC.
Both films are textbook examples of free speech protected by the First Amendment.
Citizens United has become a bogeyman for politicians and the media, blamed for virtually every perceived ill in politics from gridlock to inequality to negative campaign advertising. Slogans like “money isn’t speech” and “corporations aren’t people” accompany any mention of the case. But in fact, what the Court actually said in Citizens United was that the government could not prohibit the release or promotion of a film, namely “Hillary: The Movie,” simply because it is funded by a corporation and criticizes a candidate for office near an election.
When you stop to think about it, virtually every film (and book) is produced or distributed by a corporation. Funny or Die Inc. is a corporation. Does that mean it should have been prevented from mocking Trump during his campaign? Of course not.
Some might say that Funny or Die and Citizens United are fundamentally different because Funny or Die produces comedy, not political advocacy. But comedy often intersects with politics, as any viewer of Comedy Central’s The Daily Show or HBO’s Last Week Tonight knows. In fact, the Supreme Court noted in the Citizens United decision, “Mr. Smith Goes to Washington may be fiction and caricature; but fiction and caricature can be a powerful force.”
The Funny or Die filmmakers’ description of their process, moreover, makes clear that politics was a key consideration throughout. For one, they explicitly hoped to irritate Trump with their portrayal. As Adam McKay, a co-founder of Funny or Die, told The New York Times, he hoped “that the site’s newest skewering of Mr. Trump will ‘with any luck’ annoy the presidential hopeful.”
Funny or Die also wanted to seize on Trump’s popularity by releasing the film at the height of his campaign’s momentum. Believe it or not, the issue of timing was a key question in Citizens United as well: how close to an election can a film critical of a candidate be aired?
The government told Citizens United that it was not allowed to distribute or advertise “Hillary: The Movie” within 60 days of a general election or 30 days of a primary. The Supreme Court rejected the government’s position, noting that this “blackout” period would cause speech to be “suppressed in the realm where its necessity is most evident: in the public dialogue preceding a real election.”
Indeed, this is precisely why Funny or Die chose to release its Trump film now. “The plan was to move really fast because we thought Trump would go away, a[t] least as a presidential candidate,” said Owen Burke, Funny or Die’s editor-in-chief.
Again, per the Times: “Kept a secret for months — no small task in Hollywood — [the film] was released to coincide with Mr. Trump’s victory on Tuesday in the New Hampshire Republican presidential primary.” In politics as well as comedy, timing is everything.
The lesson here is that corporate speech is just that – speech. The New York Times, Fox News, and NPR are corporations too, and yet when news media criticizes, lauds, or even endorses candidates, there is little to no outrage. We take that freedom for granted because we’ve been exercising it for so long, but the same principle should apply to film and every other medium used to express ideas.
Speech on the screen should be just as free as speech on the page. Viewers, not the government, should decide what to watch, what to read, what to trust, and what to think.
The Supreme Court got it right in Citizens United when it observed, “[s]ome members of the public might consider Hillary to be insightful and instructive; some might find it to be neither high art nor a fair discussion on how to set the Nation’s course; still others simply might suspend judgment on these points but decide to think more about issues and candidates. Those choices and assessments, however, are not for the Government to make.”
The same can – and should – be said of Funny or Die.