Um, I would have thought that this had been resolved centuries ago. 911 is a polemic. As were all of the polemics published in the US just before and during the Revolution.

"but documentary type films, which present themselves as factually premised, raise tougher questions"

No they don't. If someone on the other side wants to take issue with a purported fact in a "documentary type film," he or she is certainly free to do so. But what does that have with any other issue regarding the film? With whether the government should be permitted to censor (in the classical sense) the film?

Raj, I noticed you left a cranky morning comment in each of the first three posts on this site, so I'm not sure how seriously to take your question. Are you suggesting that the government may not, as a general matter, prohibit false statements of fact? That would be a suggestion that is, well, wrong.

I understand that you appear to be unable to read the first amendment. Well, you are in good company: the supreme court is, as well, as those of us who are familiar with, for example, US v. Schenk and US v Frohwerk know full well. You may be familiar with the Schenk opinion: it is the source of the idiotic diatribe regarding yelling fire in a crowded theater, although the case had nothing to do with either fires or theaters.

It strikes me that, if someone believes that Moore's film is factually deficient (which it may well be), he or she can certaintly try to set straight what he or she believes the record to be. Moreover, if someone believes that he or she has been defamed by Moore's film, that person can sue for libel or slander. But to suggest that there is a "higher standard"--whatever that means in regards the 1st amendment--strikes me as a bit much.

You suggest that films as propaganda might be viewed as "commercial speech" (as in for example, selling Michael Moore caps, I presume). Films as propaganda might also be viewed as inciting violence. The latter, in my view, might pose more of a problem than the commercial speech issue.

the film, in light of campaign finance regs, is being discussed at the election law listserve accesible via hasen's electionlawblog.org.
also discussed is the nra as news provider.
it would be ironic if a case about moore's film was used to open up a free speech "loophole"
for the nra and moore's other enemies.

the government cannot prohibit false speech, without more. the alien and sedition acts applied only to speech that was 1 false 2 malicious and 3 defamatory. see also new york times v sullivan.
no on 119! (washington state) and napoleon moses v louisiana are campaign finance cases showing this is hard to apply in practice.

moore's films tend to be mockumentaries - a clever mix of truth and fiction

I don't know that false statements in this context are per se unrestictable without more. If I remember right, the Sedition Act would most likely be held unconstitutional today because under NYT v. Sullivan seditious libel, i.e. false statements about the government, are not punishable at all under the false statement of fact exception. Under this rationale, statements about the President qua President would be protected.

This would create an interesting anomoly in the law: false statements of fact about the incumbant could be unrestrictable, but false statements about the challenger would be restictable (though maybe not easily, since it would still require "actual malice" under NYT v. Sullivan).

The easy answer in my mind is to distinguish the Sedition Act, and say this sort of false statement during a campaign is not about the government, but just about a public figure on a public matter. On the other hand, we could treat statements about either candidate as unrestrictable for falseness, since the potential of chilling true speech (or similarly chilling negligently false statements, which could have the positive effect of encouraging public debate) during a presidential election is especially egregious.

Films as propaganda might also urge viewers to take certain action--action that may involve a purchase or some other "transaction"--in which case the films may be subject to the lower protection of commercial speech.

I'm pretty sure that in order to be "commercial speech," it would have to urge you to buy something that the speaker is actually selling.

So, I could see how a G.I. Joe cartoon could be commercial speech -- since they're trying to get you to buy G.I. Joe dolls -- but if Michael Moore is trying to get you give someone else (like John Kerry) money, then I don't see how it could possibly be commercial speech.

If political speech is commercial speech, then what isn't? What speech (other than small talk) isn't intended to make you go do something?

What would the critics of Moore say if the title to his film were "Centigrade 9/11", an even hotter title?

Matto, can you cite the specific Sullivan quote to which you refer? I don't think it allows -all- criticism of the government, but sets the false malicious defamatory test, which was also the standard in the sedition act.

Matto, can you cite the specific Sullivan quote to which you refer? I don't think it allows -all- criticism of the government, but sets the false malicious defamatory test, which was also the standard in the sedition act.