The constitutional guarantees for free speech and free press do not discriminate, so neither can the press exemption.

The Privileged Press, May We All Enjoy the Freedom

America learned just how privileged the press is after the Federal Election Commission released one of its rulings last week.

The Center for Individual Freedom had brought the complaint, asking whether CBS News was subject to the same federal election laws that regulate and restrict the political speech of every other corporation.  Indeed, it seemed like an appropriate inquiry since “60 Minutes II” had aired the infamous Dan Rather “story” — that everyone recognized as an attack on President Bush — less than two months before the 2004 Presidential Election.

The documents supporting the National Guard “story” were fabrications, or, at the very least, CBS News had recklessly disregarded the numerous indicators undermining their authenticity.  In fact, not only did the experts hired by CBS News question the credibility of the documents, but the reporters and producers knew they had to broker a relationship between the source and the Kerry-Edwards campaign just to get the papers.

In other words, the allegations were obvious.  A major media corporation had aired an attack on a presidential candidate over the national broadcast airwaves less than two months before a federal election, and, to do so, employees of the media corporation had consulted the opposing campaign.

For any non-media corporation, the violations would have been equally obvious.  All of this would have meant that CBS ran a prohibited “electioneering communication” with corporate money, meaning that CBS made an illegal expenditure that would also be attributed to the Kerry-Edwards campaign as an illegal contribution, neither of which was reported or disclosed, not to mention that CBS and the Kerry-Edwards campaign were coordinating their political efforts.

But CBS isn’t just a corporation, CBS is the “press.”

According to both Congressional statute and Commission regulations, the “press” is exempt from the federal election laws for “any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate.”  In other words, the rules that tell the rest of us when we can “refer to a clearly identified candidate for Federal office,” and with what money, don’t apply to the “press.”

That explains why the six members of the Federal Election Commission voted unanimously to “find no reason to believe that” CBS or the Kerry-Edwards campaign “violated the [Federal Election Campaign] Act in connection with the September 8, 2004 broadcast of 60 Minutes Wednesday.”  But it doesn’t answer the question that remains unresolved still today — namely, who is the “press”?

Indeed, at least two Commissioners recognized the existence of this constitutional Pandora’s Box underlying the complaint against CBS.  Specifically, Commissioners David Mason and Bradley Smith explained:

By dismissing without a factual investigation, the Commission essentially holds that even if the allegations in the complaints are true, there is no violation of the law.  Taking those allegations as true, however, would mean that there was an intentional effort by CBS to sway the election against George W. Bush, undertaken in coordination with the rival Kerry campaign.  In other words, if the allegations are true, a large corporation intentionally or recklessly put false documents on the nation’s airwaves, in coordination with a candidate’s campaign, with the knowledge that its story would directly reach millions of voters and indirectly reach millions more, all for the purpose of influencing the election, and could do so merely because the corporation claims to be “press.”

Making matters worse, there isn’t and can’t be any logical standard for who is the “press.”  The Commission has already extended the exemption to protect such purveyors of news as movie studios, and more recently the Commission asked for comments and testimony as to whether bloggers and other Internet publishers should be exempt, as well.

Constitutionally speaking, the Commission is correct to offer the “press” exemption to anyone who avails himself, herself or itself of the freedoms of speech and of the press.  After all, the First Amendment makes no distinction between the town crier who sets up his soap box in the public square and the network anchor who sits down each night in a television studio.

Indeed, as the Center has argued consistently, most recently to the Commission regarding the proposal to extend the “press” exemption to bloggers and other Internet publishers: the constitutional guarantees for free speech and free press do not discriminate, so neither can the press exemption.

Thus, despite their votes to privilege the “press” by ruling that “the government simply has no role or authority in policing alleged mendacity, bias or unprofessional conduct by the media,” Commissioners Mason and Smith did so for the right reason — including every publisher big and small, new and old, on-line and off-line because they could “find no statutory, constitutional, or especially, policy justification that would deny the so-called press exemption to any periodical publisher of political news or views…”

The Founders instructed us that “Congress shall make no law,” especially when it came to political speech and press.  But since our government has so neglected this simple command, it’s time Americans make it clear that everyone can be the “press” so we all once again enjoy the privilege of our first freedoms.

July 28, 2005
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