Eugene Volokh is writing a series of articles on Free Speech and freedom of the press over at Reason. In this installment, he looks at exceptions afforded to a special class of corporate ‘speakers’ the professional press.
Under any sensible accounting scheme, an editorial supporting a candidate would cost a lot in labor costs and the editorial’s share of newsprint, ink, and distribution costs. That would often far exceed $1000; and most newspapers are of course organized as corporations. Likewise for extended coverage supporting or opposing a candidate, when engaged in by an opinion magazine.
Campaign finance laws generally exempt “broadcasting station[s], newspaper[s], magazine[s], or other periodical publication[s],” precisely to avoid this result. But those are just statutory exemptions, created as a matter of legislative grace. What if Congress or a state legislature decided to omit any such exemption, so that on its face the law did bar expensive editorializing for or against candidates by newspapers, just as it was intended to do for other spenders?
No one, least of all me, wants the government regulating the press but the fact remains that the professional press exist as corporate entities with paid reporters and editors exercising rights under special protection they don’t deserve.
These corporate in-kind contributions on issues or individuals are exactly the sort of thing the campaign finance reform folks claim to despise (from any corporation that does not favor their preferred outcome). The net annual value of this corporate press exception is somewhere in the billions. But because they are “The Press” they get a pass unless they are the wrong sort of press.
I think this is wrongheaded but in the right direction.
First, I don’t care if they are biased as long as the first amendment (and campaign finance law) permits someone else to point at the bias and provide alternative views with equal protection.
But there is an ongoing perception in the left-leaning ghettoes (including press rooms) that the press exception is legitimate and that similar corporate expression by non-press professionals can and should be subject to limitations.
The exclusion of this protected corporate speech by the left strikes me as proof that all corporate speech should be permitted and any argument to the contrary is a tyrannical lurch toward silencing dissent (even when the suppressed dissent seeks to expose government tyranny or collusion with –say the institutional press).
Having said that the first amendment does include the word ‘press’ in it but what did the founders mean by the press?
I’m not a Constitutional scholar but it seems to me the founders crafted the first amendment to ensure protection from government tyranny for the actual speech (words spoken out loud to a person or group), conversation in a gathering be it public, private. Shared thoughts and ideas of the heart and mind (expressed as religion or otherwise), and any form of any of the above committed to print. Words, thoughts, ideas, delivered via a printing press.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Congress has and does make laws “abridging” with special exceptions for journalists. I don’t see journalists in the first amendment. I don’t see actors, directors, musicians, artists, or strippers either, none of whom should need to be journalists to get the campaign finance free ride.
If they want to invest in campaign speech, written or oral, let all come before the masses with equal rights subject as much to those rights as their own exercise.
Put another way, “The Press,” in my opinion, does not mean journalists.
On a hunch, I searched out the opinion of Supreme Court Justice Joseph Story who was intimately familiar with the founding and the voices, public, private, and political with regard to the role of government and the impetus behind its first ten amendments. [Emphasis Mine]
“It is plum, then, that the language of this amendment imports no more, than that every man shall have a right to speak, write, and print his opinions upon any subject whatsoever, without any prior restraint, so always, that he does not injure any other person in his fights, person, property, or reputation: and so always, that he does not thereby disturb the public peace, or attempt to subvert the government. It is neither more nor less, than an expansion of the great doctrine, recently brought into operation in the law of libel, that every man shall be at liberty to publish what is true, with good motives and for justifiable ends. And with this reasonable limitation it is not only right in itself, but it is an inestimable privilege in a free government. Without such a limitation, it might become the scourge of the republic, first denouncing the principles of liberty, and then, by rendering the most virtuous patriots odious through the terrors of the press, introducing despotism in its worst form.”
All the relevant references I found point toward the press as a medium, not a profession. Communication via the printing press. Words on paper.
This suggests that the first amendment, in its duty to protect the people from capricious and powerful institutions enumerates the natural right to religious expression, spoken words, association, redress, or the printing and sharing of any of the above because,
In some countries no works can be printed at all, whether of science, or literature, or philosophy, without the previous approbation of the government;
Written, published works.
Yes, there is undoubtedly reams of opinion on why that’s not exactly true, but the truth about court opinions is that this is all they are. Any future cabal of robed geniuses is free to ignore anything that has ever gone before in favor of some new interpretation or in this case old one. Typically this is something more restrictive, but on occasion, we catch a break.
Not so much here, or not yet, citizen United aside, which was a form of corporate speech expressed on film censored by law because of its political content, that won one of the most important victories for campaign speech in perhaps a lifetime.
Those in favor of restricting speech hate it and will try to write a new law to impose this selective censorship again. These are the same folks who take “the press” in Amendment one to mean (hundreds of years later) that massive multi-billion dollar corporations that didn’t exist to control the narrative are exempt from campaign finance reform laws if they claim to be ‘The Press.’ If it is your profession no matter how much money it earns or how it is used or organized to express political ideas, there is a carve-out for their speech.
So, yes, Technology matters to these people when it comes to firearms (the founders never envisioned that) but not modes of communication.
Today, anyone with a cell phone can be a reporter, providing coverage, analysis, and opinion on the day’s events (with video or text), in real time, to an audience that could conceivably be broader than any professional media based in the Granite State. Yet there are those who contend that the latter have more speech rights than the former. That the same story might violate campaign finance laws from one source but not the other.
This is absurd.
But to incumbents, (see also the government) it is a frequent source of activity by which I mean they create laws or regulations which define rights via carve-outs that make no sense.
The professional media are corporations engaging in political speech. Treat them like every other corporation for the sake of campaign finance laws or treat every other corporation like them.
Speech will still be free. The written word will continue to flow. Freedom of the press will not be infringed. At least as long as we keep the government and their progressive technology allies from regulating or limiting who or how written expression travels on the internet.
Right?