The media exemption and a harbinger?

May 7, 2010   •  By Steve Hoersting
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Campaign finance fans will recall the regulatory battle over internet regulation after the signing of the McCain-Feingold Act. The FEC had never seen so many comments on one of its rulemakings.

Bloggers everywhere were claiming that they fit within the “media exemption” to federal campaign law.  Reformers were saying the media exemption should be limited to well-established media organizations.

It wasn’t just the Internet’s new prominence or technical advances that brought the issue to the fore. It was the McCain-Feingold Act itself. Organizations have always wanted to speak, and the media exemption would have been a good way to do so freely in any medium over many years.

Claims to the media exemption arose out of increased regulation built on broader and vaguer standards.  Where everyone before could understand the regulatory dividing line for impermissible political advertising in phrases such as “Vote for,” “Defeat,” or “Don’t give Jones 4 more years,” switching the standards to vague terms such as “promote, support, attack, or oppose” or broad terms such as mentioning “a candidate with 30 days of a primary election,” made speakers reach to the media exemption for relief.

The pressure on the media exemption seemed to build. The need to determine who makes up “the press” seemed to increase. Everyone was unsure how the matter would turn out.  The FEC solved the issue for the time being with extensive regulations on internet activity.

But the rulemaking revealed dormant problems.

The institutional press—ever grateful for its media exemption and eager to lobby for McCain-Feingold legislation that would hamper other speakers—had become too cozy in the notion that their First Amendment somehow differed from First Amendment rights enjoyed by others.

But the question of whether the press, as a practical matter, enjoys “better” protection is coming back into play, for at least three reasons.

Press outlets are claiming penury and some are looking for taxpayer subsidies, which could affect their advocacy or ability to protect their sources.

The FCC’s new attempt to make the Internet a public utility, if passed, might put establishment media (and not others) back into the driver’s seat of driving political debate.

And the media exemption, itself, is again before the FEC in an advisory opinion request by the Citizens United organization in the wake of Citizens United Supreme Court opinion.

If, as the Court said, speech rights cannot turn on the identity of the speaker, how can government exempt some entities from campaign law and not exempt others?  And should the government be deciding who are members of the press in any event?  Isn’t “press” just an activity?

Journalists long looked down their noses at bloggers, and long believed the media exemption and our nation’s noble history of press-as-watchdog would give them a leg-up in legal battles against bloggers.  In short, they thought that while advancing Internet technology might not build up the press, surely it would not tear it down to the level of other speakers.

But a case out of Canada—from a legal system and tradition admittedly different from our own—may be a harbinger of things to come.  Their highest court just limited the press’s privilege of protecting sources.  And the reasoning of the Canadian Court is worth skimming.

In its ruling, the Supreme Court… said that a constitutional protection of freedom of expression is not limited to “traditional media” but is enjoyed by “everyone.”

The rights extend to blogging, tweeting, “standing on a street corner and shouting the ‘news’ at passing pedestrians,” as well as publishing in a national newspaper, the court said.

But granting immunity to sources deemed worthy to quote on condition of anonymity by “such a heterogeneous and ill-defined group of writers and speakers… would blow a giant hole in law enforcement and other constitutionally recognized values such as privacy,” it added.

If this Canadian case is indeed an American harbinger, it seems the press bet wrong.  The rise of the internet is demonstrating that “the press” is an activity to be enjoyed by all, not a class of professionals preferred and permitted to speak more thoroughly than others.

Steve Hoersting