27 Comm. Law. 1 (2010-2011)

handle is hein.journals/comlaw27 and id is 1 raw text is: Communielons
Publication of the Forum
on Communications Law
American Bar Association
Volume 27, Number 1, April 2010  e r
S*N *          A ** 1* EK  1 eS

In this issue
COVER STORY
It All Started with a Very Bad Movie
A poorly shot documentary led to a
sweeping Supreme Court decision that
overturned campaign finance law and
may have widespread ramifications for
the communications industry.
The Pentagon Papers Redux?.....2
The forum's chair looks at government
attempts to restrict public access to in-
formation by labeling it as classified.
User Generated Content
inthe  EU  ....................................  5
Section 230 of the CDA protects most
U.S. website publishers from liability for
what is posted by their users. But Euro-
pean publishers may face considerable
liability under similar circumstances.
To Tweet or Not to Tweet? .........14
Tweeting and live blogging are as much
a part of mainstream media as traditional
newspapers, TV, and cable. But some
judges are still skittish and fear that ju-
rors and prospective witnesses will visit
the Twitter site.
Is Truth Stranger Than Fiction? ... 18
CL interviews the defense attorney in The
Red Hat Club case, in which the plaintiff
alleged that the author's fictional depic-
tion made it appear that she, like the char-
acter, was a promiscuous alcoholic.
Legacy of Dyer v. Childress.......20
The authors examine developments in
anti-SLAPP law pre- and post-Dyer,
with particular attention paid to the pro-
tection for entertainment media under
anti-SLAPP jurisprudence.
Courtside.................................26
In addition to the Citizens United decision
[see page 1], the Court addressed pretrial
publicity and granted cert. in a case in-
volving protestors who appear at funerals.

Citizens United: Coming Soon
to a Cable Broadcast and
Satellite Channel near You!
DEVEREUX CHATILLON

It all started with a bad movie, a non-
profit with an agenda, and a court with a
critical shift in personnel.
Hillary: The Movie reportedly is a
poorly shot, lumpishly edited documen-
tary on now-Secretary of State Hillary
Clinton, then an aspirant for the Demo-
cratic presidential nomination. Citizens
United, a nonprofit political advocacy
group, distributed the movie in theaters
and on DVD and planned to release it
via video on demand. When the Federal
Election Commission (FEC) took the
position that showing the documentary
via video on demand would violate the
federal campaign finance laws, Citizens
United filed suit in the U.S. District
Court for the District of Columbia,
seeking a preliminary injunction and a
declaratory judgment that FEC could not
prohibit the group from distributing the
movie via video on demand because that
would violate the First Amendment to
the U.S. Constitution. The case, Citizens
United v. FEC, was decided on January
21, 2010, by the Supreme Court.I
As this brief description suggests, the
case is significant for media corpora-
tions on several levels. First, because
media corporations are corporations
like any other, the Court's elimination
of the previously existing ban on the
use of any corporate money to buy ads
(or spend money in any way other than
direct contributions) to urge the election
or defeat of a candidate for federal office
frees media corporations to do exactly
that. The previous need to use political
action committees and the complete ban
on all such ads within thirty days of a
primary or convention and sixty days of

an election have vanished as the Court
declared that the federal statutes prohib-
iting them violated the First Amendment
to the U.S. Constitution.
Second, although most news report-
ing and traditional media commentary
was exempted from federal campaign
regulation, any possible remaining con-
straints on media activity in connection
with those activities by corporations are
gone. And because of the elimination of
the constraints on advertising and other
kinds of spending by corporations, both
for-profit and not-for-profit, there could
be significant changes in the general me-
dia landscape in connection with federal
elections. Although the long-standing
exemption for traditional media corpora-
tions when engaged in news reporting
and regular programming or publishing
likely remains, with the elimination of
several major statutes, the interplay of
FEC regulations concerning coordina-
tion with campaigns and similar restric-
tions on corporate spending in relation
to campaigns may now be altered.
(Continued on page 27)
Devereux Chatillon (dchatillon@sonnen
schein.com) is a media, intellectual property
and commercial litigation partner in the New
York office of Sonnenschein Nath & Rosenthal
LLP who, along with Sonnenschein s
Washington, D.C., office, has represented
such diverse clients as movie producers, hook
publishers, and the Brennan Center for Justice
in connection with campaign finance issues.
Ben Deljin and Nicholas Tardif both attorneys
in Sonnenschein & New York office, provided
invaluable editing and research assistance.

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