Journalists are First Amendment fetishists.
Few topics arouse the self-righteous wrath of journalists more than government encroaching on their First Amendment rights. The Fourth Estate largely views the First Amendment as specifically protecting their noble profession, but until recently mainstream media organizations have been loath to defend politicians’ rights under the same banner.
Editorial pages have long railed against the supposedly corrosive influence of money in politics, but a recent Supreme Court case has media elites reconsidering the benefits of government regulating political speech.
In the case Citizens United v. FEC, the Reporters Committee for Freedom of the Press, an advocacy organization for journalists, filed a brief supporting Citizens United, a conservative nonprofit group.
Citizens United was prevented by the FEC from broadcasting a scathing documentary on then-presidential candidate Hillary Clinton. More specifically, the group was barred from distributing the film over video on demand, and the group also found that movie’s promotional ads would have been subject to campaign finance disclosure and disclaimer requirements. The Reporters Committee argued such restrictions would harm non-traditional journalists using new media.
The government is allowed to control this speech because of the Bipartisan Campaign Reform Act, better known as McCain-Feingold. The law bans electioneering communications paid for by corporations or unions that are "susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate." Such ads cannot run within 30 days of a primary or 60 days of a general election. McCain-Feingold also included an exception for news stories, commentaries and editorials, which allowed most media outlets to tout the new restrictions enthusiastically as a way to remove the influence of big money in politics.
But McCain-Feingold has failed to prevent numerous congressional bribery and graft scandals or to reduce the influence of corporate and special interests. Nevertheless some media organizations still cling to McCain-Feingold as a necessary speech curb.
Even as the Citizens United case has prompted many news organizations to rethink their unconditional support, The New York Times editorialized against Citizens United, lest McCain-Feingold be further watered down. The Supreme Court has already struck down one major provision (the "Millionaire’s Amendment" in Davis v. FEC) and narrowed another (the "electioneering communications" ban in Wisconsin Right to Life v. FEC).
Such unqualified support for campaign finance regulation exposes the Times to the charge of hypocrisy. It seems the Gray Lady loves the First Amendment, except when it protects anyone else, including politicians, lobbyists, interest groups or, worst of all, corporations.
But the Times and other media organizations such as Fox News are owned and operated by corporations. They regularly advocate the election or defeat of candidates through favorable or critical endorsements and commentary. Newspapers and other media have enormous platforms to influence public opinion. This communication requires money – subscriptions, advertising dollars and capital investments. Money doesn’t equal speech, but it’s necessary to speak.
Imagine if Congress hadn’t long exempted the mainstream media from its campaign finance laws. Could the Supreme Court have determined that newspapers and broadcast media could be banned from endorsing candidates 30 days before a primary and 60 days before a general election? Or could the High Court decide that investors in media companies could only buy $2,400 of stock, so no one would gain a corrupting influence over public opinion?
The Reporters Committee’s amicus brief in Citizens United is limited to defending free speech as it relates to journalists and cites the landmark case New York Times Co. v. Sullivan, which constitutionally protects criticism of public figures, including "vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."
There’s no legitimate rationale for providing media companies this right and not other corporations – for-profit or not-for-profit. What part of "Congress shall make no law…" is ambiguous?
Perhaps the turning point in the campaign finance reform debate will be remembered as the day the government argued — as Deputy Solicitor General Malcolm Stewart did in Citizens United — that Congress could go so far as to ban books, and indeed any type of media, if funded by corporations. That shocked even the four liberal-leaning justices who generally support campaign finance regulation.
A strong and free press is necessary for our democracy, but it’s not sufficient. The First Amendment protects the news media from the excesses of government, but it also protects citizens who seek to support candidates who share their principles, lobbyists who petition the government for their clients, politicians who communicate with voters through ads, and even corporations that want to spend money on issues affecting their interests.
It’s time for scribes to stop editorializing against onerous campaign finance regulations that tarnish the First Amendment for anyone who wants to participate in American politics.