Free Speech For All
The Washington state Supreme Court’s decision in favor of a talk show’s right to express political views is seen as a victory for free speech. However, behind that decision is the court’s opinion that this free speech may be abridged by act of the legislature, as the case turned on a media exemption in the state’s law, similar to that in federal law.
Former FEC attorney Allison Hayward (bio) at her blog agrees with me that some of the most trenchant comments on election law are coming from Bob Bauer, counsel to the Democrats in Congress.
Bob Bauer’s essay (they really are too good to be blogs) on the evanescent protection upheld in this case.
Bauer is an accomplished attorney because he can see the various sides of an issue. That doesn’t mean that he will not avidly pursue the position of his clients in court. It means that he will anticipate the opponents’ case in representing his clients.
I’ve featured Bauer’s writings several times, as they are right to the point of weaknesses in the case for the McCain-Feingold and campaign law fiascos that have done nothing to diminish corruption or heavy money interests but have done much to restrict the ability of more ordinary folks and organizations because of the weight of compliance with regulations. (My previous columns featuring Bauer are linked below.)
Bauer’s blogpost today is, again, must reading:
[I]t is not clear why media companies’ "news function," which in the end is still a corporate money-making function, affords them broader free speech rights than other corporations—even nonprofit corporations….
A traditional answer has always been that corporations in the business of news stay out of politics. This is plain nonsense, as conservatives point out in their case against NPR and the BBC, and as liberals now loudly charge against Fox….This much might be said for overtly political organizations: the audience is clear about what is being offered to them.
A corporation can say that its commentators and other personnel speak only for themselves, not for the company. But they pick these personnel. They claim for their efforts "fairness and balance," but airtime being a scarce resource, even sincere efforts in this direction can only go so far. In the end, their political effect is profound even if their intent is governed by the highest standards of nonpartisanship. Have we not recently heard a great deal from the government about how corporations, including and most prominently nonprofit organizations, must answer to the law, the campaign finance laws, for their "effects"?This line of reflection is not to be confused with a proposal for the withdrawal of legal protections for media corporations. Better that at least some political speech be considered almost sacrosanct. But it should also bring to mind the essential arbitrariness of the protection granted, since a large corporation making money off the dissemination of "news" represents a large exception to the general resistance to speech rights for corporations, including rights claimed by nonprofit corporations in the advocacy business.
The Washington State Supreme Court refreshes this reminder with its observation that what has been given might be taken away, by the simple expedient of an amendment to the statutory exemption. While having to contend with constitutional limits on its actions, a legislature is not foreclosed from acting at all. For example, if concerned with on-air politics like those addressed in San Juan County, a legislature might chose to retain but qualify the broad exemption by regulating the election-season programming a news organization can carry.
During the debate on the Federal Election Commission’s Internet rules, many bloggers looked beyond the frailty of the media exemption and asked to be blessed with its benefits just like the traditional media. The rulemaking concluded to their satisfaction, this and other goals largely realized, but the opportunity was lost for them to stand for speech that is not reliant on the government for its recognition and protection. The media exemption is just that: an exemption, which only underscores its potential vulnerability….
The campaign finance laws are like this: on a step back, the view begins to look strange. The rules, favoring certain mammoth corporations and disfavoring diminutive nonprofits, are justified by this distinction or the other: giving free reign to the lucrative advocacy of "news commentary" but keeping nonprofit forms within strict limits. It makes a certain sense, just as the San Juan County decision does, but only because the "system" is so familiar that it is thought, mistakenly, to be part of the just and natural order of things.
The “just and natural order of things” was enshrined in the Constitution:
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.
Only those who seek to restrict the competition of ideas can see anything less than that as “just and natural.”
Media Self-Interest In Campaign Restrictions
| Apr. 27, 2007 | 11:41 AM