Political spats in Maine are threatening free press rights, and a bad law is at the source of it all. The casualty will be new sources of news.
The Maine Democratic Party recently filed a complaint with the Maine Ethics Commission demanding an investigation into the Maine Examiner website and its ties to the Maine Republican Party. Democrats suspected the online publication was operated by their counterparts to help defeat a progressive Lewiston mayoral candidate last year. On Feb. 22, the Maine Ethics Commission voted 3-2 against the motion to investigate.
Aside from this spat, the law itself, at least as it applies to real people engaging in citizen journalism, is dangerous to a free press.
Under Maine campaign law, an independent expenditure is “any [independent] communication that expressly advocates the election or defeat of a clearly identified candidate[.]” Even worse, the law assumes any mention of candidate in any communication within 28 days of an election is an independent expenditure. Independent expenditures over $250 must be reported to the government.
The law does exempt the press from such reporting requirements, but it adds requirements that are unconstitutional, burdensome, and impractical.
To get the exemption as a periodical publication, a publication must have been publishing “for at least the previous twelve months” on a “variety of topics[.]” Alternatively, outlets must have “a record” of publishing such content and persuade a group of bureaucrats to decide they will “continue to be published” after the election. In addition, exempt media can’t be owned or controlled by a party, PAC or candidate, and must publicly disclose “the names of the persons or entities who own, control, and operate” it.
Fines for violations can be as high as $15,000.
In reality, Maine’s supposed “press exemption” is nothing more than an informal media licensing scheme and muzzle on a free press.
To start, the regulation is more onerous than the law requires. The statute requires the press be exempt from reporting requirements, but only vaguely discusses which entities fall under the exemption. That leaves the Commission with broad discretion. Yet rather than creating a wide exemption that maximizes free press rights, the Commission has instead elected to adopt demanding criteria that threaten the creation of new media sources.
Take Pine Tree Watch, a nonprofit media company founded in 2009 that seeks to “hold Maine state government and institutions accountable,” for example. It has won numerous awards for its reporting, including a 2016 story highlighting Governor Paul LePage’s connection to a political action committee. If Pine Tree Watch had launched near an election and published the LePage story as one of its early stories, it’s possible—indeed likely—Pine Tree Watch could have been at the mercy of the Maine Ethics Commission.
In Tennessee, a group of citizen volunteers who operated a website and Facebook page that published its views on local school issues found themselves fined $5,000 by state regulators for not filing as a PAC. Maine regulators could easily do the same with this bad law. A lengthy court battle ultimately vindicated the Tennessee group, but it’s an outrage they suffered such chilling harassment in the first place.
These fiascos are hardly what the authors of the First Amendment imagined when they secured freedom of the press in our Constitution.
Suppose such a law were enforced by the British during colonial times. Before publishing an essay criticizing a local official, a pamphleteer could not simply publish his message and hand it out to his friends; he would first have to ensure he constructed an entire news media operation covering a “variety of topics” at least twelve months prior (or otherwise show an intent to publish long-term). The daunting cost and time commitment alone would deter even the most gifted of voices from speaking.
What’s more, the law’s disclosure requirements would have almost certainly chilled speech essential to the birth of the United States. During the Framers’ time, many writers operated pseudonymously—including, most famously, the authors of the Federalist Papers. Maine’s law, if enacted nationally, would have destroyed anonymity’s shield and put writers at risk, depriving the public of the very ideas that formed the foundation of our republic.
The Ethics Commission needs to go back to the drawing board and rewrite the media exemption regulation, this time with an eye toward the free press rights secured by the First Amendment
This post originally ran in the Maine Wire on March 26th 2018.