The point is well-taken. There are two possible approaches to address
this point:
1. An advertisement that accurately reflects the contents of the
commentary
(the film) is also a commentary.
2. Under the MTV advisory opinion and the cases cited therein,
publicity for the commentary has the same legal status as the commentary
itself. This is probably a new analytical point not yet reached in the
legal authorities construing the electioneering statute. This point
makes
sense; any author wants to publicize his or her commentary. Moreover,
unless there is publicity, the commentary may not reach a significant
audience, thereby rendering the exception of little value and
undermining
its purpose of respecting the free expression of opinions and vigorous
debate in a democratic society.
The cases construe Section 431(9)(B)(i), which provides an exception to
the definition of expenditure for any news story or commentary
distributed
through broadcasing facilities. This Section does not use the word
"in,"
as does Section 434(f)(3)(B)(i). However, once we accept that an
advertisement
has the same legal status as the commentary, Section 434(f)(3)(B)(i)
effectively
reads "a communication appearing in a news story, commentary [or
advertisement
for such commentary]," and the condition imposed by the use of the term
"in"
is satisfied.
Steven H. Sholk, Esq.
Gibbons, Del Deo, Dolan, Griffinger & Vecchione, P.C.
One Riverfront Plaza
Newark, New Jersey 07102-5496
(973) 596-4639 (Phone)
(973) 639-6338 (Fax)
ssholk@gibbonslaw.com (e-mail)
-----Original Message-----
From: Trevor Potter [mailto:TP@Capdale.com]
Sent: Thursday, June 17, 2004 5:41 PM
To: Sholk, Steven H.; Beth Kingsley; James Cooper;
election-law@majordomo.lls.edu
Subject: RE: "Fahrenheit 9/11" and electioneering communications
The "communication" referred to must be "in" the news story, etc-not in
an accompanying advertisement on the station-to be eligible or this
particular exemption
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu on behalf of
Sholk, Steven H.
Sent: Thu 6/17/2004 10:22 AM
To: Beth Kingsley; James Cooper; election-law@majordomo.lls.edu
Cc:
Subject: RE: "Fahrenheit 9/11" and electioneering communications
The statute in 2 USC Section 434(f)(3)(B)(i) contains an
exception to
electioneering communication for "a communication appearing in a
news
story, commentary, or editorial distributed through the
facilities of
any broadcasting station, unless such facilities are owned or
controlled
by any political party, political committee, or candidate." The
regulation,
11 CFR Section 100.29(c)(2), is similarly phrased.
Isn't the issue whether the author or sponsor of the
advertising, a
movie
distributor, is eligible for the exception? The exception is
granted to
any
news story or commentary distributed through a media outlet.
Thus, the
media
outlet must only be the distributor of the communication, rather
than
the author
or sponsor of the communication. Under this analysis, a movie
distributor
that advertises in a bona fide media outlet is eligible for the
exception.
Therefore, the distributor of Fahrenheit 9/11 can advertise on
television
and qualify for the exception.
Steven H. Sholk, Esq.
Gibbons, Del Deo, Dolan, Griffinger & Vecchione, P.C.
One Riverfront Plaza
Newark, New Jersey 07102-5496
(973) 596-4639 (Phone)
(973) 639-6338 (Fax)
ssholk@gibbonslaw.com (e-mail)
-----Original Message-----
From: Beth Kingsley [mailto:bkingsley@harmoncurran.com]
Sent: Thursday, June 17, 2004 9:25 AM
To: Sholk, Steven H.; James Cooper;
election-law@majordomo.lls.edu
Subject: RE: "Fahrenheit 9/11" and electioneering communications
I agree Reader's Digest is helpful in determining when the exemption
applies to an acknowledged news media outlet. But isn't there a
real
question as to whether a movie distributor qualifies as a
"broadcasting
station (including a cable television operator, programmer or
producer),
newspaper, magazine, or other periodical publication"? As far
as I can
recall, there's not a lot of precedent, AOs or cases, on the
scope of
the exemption in terms of covered entities. MCFL's newsletter
was found
not to qualify, but (without going back and checking) I do not
believe
it was because MCFL couldn't have published a news periodical,
just that
it had not done so on the facts of the case.
Elizabeth Kingsley
Harmon, Curran, Spielberg & Eisenberg, LLP
1726 M St., NW
Suite 600
Washington, DC 20036
202-328-3500
> -----Original Message-----
> From: Sholk, Steven H. [mailto:SSholk@gibbonslaw.com]
> Sent: Wednesday, June 16, 2004 6:25 PM
> To: James Cooper; election-law@majordomo.lls.edu
> Subject: RE: "Fahrenheit 9/11" and electioneering
communications
>
>
> The MTV FEC Advisory Opinion, 2004-7, provides some guidance.
> The FEC notes that the media exemption to the definition
> of contribution and expenditure is similar to the exemption
> of 100.29(c)(2) for electioneering communications. The FEC
> noted as follows:
>
> In Reader's Digest, the court noted that "if [the magazine]
> was acting in its magazine publishing function, if, for
example,
> the dissemination of the tape to television stations was to
> publicize the issue of the magazine containing the ...
article,
> then it would seem that the exemption is applicable." 509
> F. Supp. at 1215. In Phillips Publishing, a mailing
soliciting
> subscriptions to a biweekly newsletter contained, inter alia,
a
> one-page combination subscription form and "opinion poll" that
referred to a clearly identified candidate for Federal office.
> The court found that, because "the purpose of the solicitation
letter was to publicize [the newsletter] and obtain new subscribers,
> both of which are normal, legitimate press functions, the
press
> exemption applies." 517 F. Supp. at 1313.
>
> Steven H. Sholk, Esq.
> Gibbons, Del Deo, Dolan, Griffinger & Vecchione, P.C.
> One Riverfront Plaza
> Newark, New Jersey 07102-5496
> (973) 596-4639 (Phone)
> (973) 639-6338 (Fax)
> ssholk@gibbonslaw.com (e-mail)
>
>
> -----Original Message-----
> From: owner-election-law_gl@majordomo.lls.edu
> [mailto:owner-election-law_gl@majordomo.lls.edu] On Behalf Of
James
> Cooper
> Sent: Wednesday, June 16, 2004 5:24 PM
> To: election-law@majordomo.lls.edu
> Subject: Re: "Fahrenheit 9/11" and electioneering
communications
>
>
> I don't see how ¤ 100.29(c) or ¤100.132 would exempt a movie
> distributor
> conducting an "unprecedented" (note: I highlight this word
> to focus on
> ¤100.132(b) and not for any hidden bias) advertising campaign
from
> adhering to the electioneering communications provisions.
>
> Are there any court cases dealing with ¤100.132 that are
relevant to
> this situation?
>
>
> ¤100.29(c) Electioneering communication does not include any
communication that:
>
> (2) Appears in a news story, commentary, or editorial
distributed
> through the facilities of any broadcast, cable, or satellite
> television
> or radio station, unless such facilities are owned or
> controlled by any
> political party, political committee, or candidate. A news
story
> distributed through a broadcast, cable, or satellite
> television or radio
> station owned or controlled by any political party, political
> committee,
> or candidate is neverthless exempt if the news story meets the
requirements described in 11 CFR 100.132(a) and (b);
>
>
> ¤100.132 News story, commentary, or editorial by the media.
>
> Any cost incurred incovering or carrying a news story,
> commentary or
> editorial by any broadcasting station (including a cable
television
> operator, programmer or producer), newspaper, magazine, or
other
> periodical publication is not an expenditure unless the
facility is
> owned or controlled by any political party, political
committee, or
> candidate, in which case the costs for a news story:
> (a) That represents a bona fide news account communicated in a
publication of general circulation or on a licensed broadcasting
> facility; and
> (b) That is part of a general pattern of campaign-related news
account
> that give reasonably equal coverage to all opposing candidates
in the
> circulation or listening area, is not an expenditure.
>
>
>
>
>
>
>
> -----Original Message-----
> From: "Jeffrey MA Hauser"<jmh248@nyu.edu>
> Sent: 6/16/04 3:38:04 PM
> To: "James Cooper"<JPCooper3@yahoo.com>
> Cc:
>
"election-law@majordomo.lls.edu"<election-law@majordomo.lls.edu>
> Subject: Re: "Fahrenheit 9/11" and electioneering
communications
>
> Being as the linked article states that the "unprecedented
$10
> million advertising budget" is "peanuts compared with the $40
million
> marketing budgets of Hollywood blockbusters," I think we can
tell the
> intention of this post.
>
> {yes, it's the highest ever for a documentary, but that's
akin to
> being the most successful fourth party ever; and if
"unprecedented"
> refers to theatrical releases with a political agenda, I'd ask
what
> budget "The Passion" had for advertising, or, for that
> matter, "The Day
> After Tomorrow." (Actually, let's hope Fahrenheit 9/11 is
better than
> those movies....)}
>
> But, without the text of BCRA or the regulations handy, I
do have
> some substantive questions:
>
> (1) Why wouldn't pre-existing movie companies, and, for
that
> matter, an established documentarian, fall within the "media"
> exception?
> Movies are a "medium;" I mean, it would seem ludicrous to
believe that
> ads for theatrical distribution would be treated differently
than ads
> for television release. (e.g., HBO often runs ads for its
original
> productions on other networks, and I would assume that an ad
> for an HBO
> production that referenced Bush or Kerry would be fine; same
> with, say,
> an ad for the Daily Show that sampled its satire of Bush}
>
> (2) Doesn't the freedom of the press come into play here
in a
> fashion slightly distinct from freedom of speech concerns? My
vague
> recollection from college Con Law (somehow or another, 1st Am
wasn't
> part of my law school Con Law class) is that there is little
doctrinal
> distinction between the clauses, but I've often thought that
such a
> collapsed doctrine is difficult to defend, being as it renders
the
> amendment needlessly redundant.
>
> If freedom of the press is relevant... I'd also suggest
that one
> could (which is definite than should) distinguish
> pre-existing elements
> of the press from institutions expressly created to get
> around the law,
> e.g., NRANews. Sometimes, judicial (and administrative, in
> the case of
> the FEC) reluctance to perform difficult fact based inquiries
into
> intent leads to ridiculously over or under inclusive
doctrines.
>
> . ----- Original Message -----
> From: James Cooper <JPCooper3@yahoo.com>
> Date: Wednesday, June 16, 2004 2:56 pm
> Subject: "Fahrenheit 9/11" and electioneering
communications
> > Would the electioneering communications provisions of
BCRA,
> > essentially in effect on June 26 for the duration of
this
> > presidential campaign due to the timing of the DNC and
GOP
> > conventions, prevent the distributors of "Fahrenheit
9/11" from
> > spending any of its of unprecedented $10 million
advertising
> > budget on television/radio spots that picture or even
> mention the
> > President?
> > I don?t see any exemptions in ¤100.29(c) that would
permit such
> > activity.
> > (Link to advertising story is below:)
> >
http://www.usatoday.com/life/movies/news/2004-06-15-fahrenheit-
> > marketing_x.htm
> >
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