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Movie tests campaign rule

'Fahrenheit 9/11' might run afoul of law, group says

WASHINGTON -- ''Fahrenheit 9/11," the fiery documentary attack on President Bush by producer Michael Moore that opened to packed theaters Friday night, is facing a challenge of its own for a potential violation of the new McCain-Feingold campaign finance law.

After the Federal Election Commission issued an advisory on Thursday that the new law would require another political movie called ''The Rights of the People" to suspend advertising 30 days before the Republican convention, a conservative-funded research group filed a challenge to ''Fahrenheit 9/11."

The FEC confirmed yesterday that it would hear the case, which will turn on the question of whether political documentaries are bound by the strictures that apply to special-interest advertisers such as unions and activist groups.

Tom Ortenberg, President of Lions Gate Films Releasing, dismissed the charge in a statement yesterday.

''This is an utterly frivolous complaint. We are confident that we are marketing the film in an wholly appropriate fashion," he said.

''Fahrenheit 9/11," which was awarded the top prize at the Cannes Film Festival, is expected to be a major hit in theaters this summer, surpassing Moore's previous film ''Bowling for Columbine." A no-holds-barred attack on Bush's Iraq policy, the movie opens just four months before a presidential election.

Partisan groups are already rallying around the film. Over 115,000 members of the political action group MoveOn PAC have vowed to pack theaters. The organization, which is pursuing a $20 million independent advertising campaign to defeat Bush, will also host more than a dozen post-film parties and discussions in seven states.

In its complaint, the conservative group Citizens United cited a provision in the McCain-Feingold law that prohibits ''any broadcast, cable, or satellite communication which . . . refers to clearly identified candidate for federal office" to air within 30 days of a primary or a convention and 60 days of a general election.

''We are not here to affect this election," said Summer Stitz, spokeswoman for Citizens United. ''But the law should be applied evenhandedly."

Stitz says that Citizens United, which in March aired a controversial ad calling John Kerry ''another rich liberal elitist," originally lobbied against the new campaign finance law but now wants the law enforced.

In addition to filing a federal complaint, the group wrote to more than 3,000 broadcast TV stations owners warning that running the ads may violate the law.

Citizens United's complaint is bolstered by an FEC advisory stating that ads for David Hardy's progun movie ''The Rights of the People" would not be allowed to air. According to FEC spokesman George Smaragdis, Hardy's film featured federal candidates and met the commission's definition of ''electioneering communication."

The FEC advisory did not address whether ads for documentaries could be exempt from McCain-Feingold under a provision that allows the media to freely publicize pieces on candidates prior to the election.

''There are exemptions for news commentaries and editorials, but since the person did not ask about them, the commission did not address them," Smaragdis said.

Stitz said Citizens United's complaint puts the question back on the table and forces the six commissioners to decide whether Moore's film qualifies as media.

''I would not call this a documentary because there is a complete absence of fact," she said. ''He is a guy trying to make a buck off of lies."

Robert Corn-Revere, a First Amendment lawyer with the Washington, D.C. law firm David Wright Tremaine LLP, said that the confusion over ''Fahrenheit 9/11" is a ''logical extension" of the McCain-Feingold's restrictions on freedom of speech.

''Once you start to regulate one type of speech before the election, you inevitably get involved in these issues," he said.

Rick Kaplar, vice president of the nonprofit research center The Media Institute, said that the question of whether the film is a documentary is complicated enough to go to court.

''So much of the campaign-finance law is hazy and so much of it is not well understood," he said. ''The movie claims to be a documentary, but a documentary being shown in theaters as entertainment is a little different."

Eli Pariser, executive director of MoveOn PAC, said that ''Fahrenheit 9/11" is a serious documentary based on real footage of the president and that banning its advertising would set a dangerous precedent.

''It would be a scary thing if you couldn't make a movie critical of the president," he said.

Jessica E. Vascellaro can be reached at

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