Why a “Media Exemption” to Campaign Finance Regulation is Always a Bad Idea
Eugene Volokh reports on a “media exemption” to regulation of speech in the name of campaign finance reform, in Washington State. Apparently the “media exemption” applies to talk radio hosts — but it may not apply to you and me:
[T]he Washington Supreme Court just confirmed that radio talk show hosts’ advocacy of a ballot measure is not regulated as a campaign “contribution” under Washington state law, because the advocacy is exempted by the “media exemption,” which excludes
A news item, feature, commentary, or editorial in a regularly scheduled news medium that is of primary interest to the general public, that is in a news medium controlled by a person whose business is that news medium, and that is not controlled by a candidate or a political committee ….
But what if a part-time but very popular blogger (think of the PowerLine people, for instance) advocates for a ballot measure? Uh-oh — the media exemption only covers media “controlled by a person whose business is that news medium.” . . . [I]f it’s a part-time sideline for the blogger (assume it’s a solo blog, just for the sake of simplicity), it doesn’t sound quite accurate to say that the blogger’s “business is that news medium.” . . . .
The blog posts supporting the ballot measure may thus have to be reported as contributions. What’s more, state law would limit them to $5,000 worth of help (whatever that means for a blog) “within 21 days prior to [the] election.”
So too bad for you, concerned citizen: Unless your “business is [a] news medium,” you’re regulated. The established, professional media are of course exempt; but, no, not you.
I have repeatedly opposed a media exemption for bloggers, describing such an exemption as “nothing more than asking our masters for permission to speak.” Over two years ago, I said:
In my view, political speech is speech at the core of the First Amendment. Neither the FEC nor any other government agency has any right to regulate it in any way. When my right to engage in such speech is threatened, my impulse is not to seek out a law carving out some exception for my speech. My impulse is to tell those responsible that they can go to hell.
At the risk of being tagged as someone who goes around saying “I told you so” . . . I told you so. The situation in Washington State well illustrates the total insanity of trying to protect our First Amendment rights by cravenly seeking media exemptions.
The First Amendment isn’t just for the media. It’s for everyone. If someone ever tries to get you to support a “media exemption” to any regulation of speech, tell them they’ll have to pry your keyboard from your cold, dead hands.
Isn’t it just great multi-national news conglomerates are exempt and me as a Private Citizen is not.
I agree with Patterico, that is why I have the Patterico Pledge on my right hand sidebar at the top of the page.
Dan Kauffman (839d43) — 4/27/2007 @ 12:21 amWhat part of “no law” in the First Amendment is so difficult for our friends on the left to understand?
Dana (3e4784) — 4/27/2007 @ 7:01 amIt’s also a bad idea to exempt the most powerful of those with standing to sue for their rights. Certainly a Campaign Speech Suppression Act that did not exempt the press would be roundly and vocally attacked in every newspaper in the land.
But once you exempt them, leaving the press as the officially privileged speakers, their position changes from stalwart defenders of constitutional liberties for all, to self-righteous scolds of all who stand in the path of civic progress.
Divide and conquer.
Kevin Murphy (0b2493) — 4/27/2007 @ 7:51 amDana –
Rick Wilcox (bb4b76) — 4/27/2007 @ 10:43 amDidn’t you get the memo? Every election cycle, there’s a “Righteousness Exemption” to the 1st Amendment.
Anyone know of any good treatments of what the world would look like if the money aspect of political speach were completely unregulated? Who, in fact, advocated for these kinds of restrictions in the first place?
Fritz (3c5a22) — 4/27/2007 @ 1:33 pmMaybe they are confusing the English word “No” with the Russian word of the same sound which means
“But”???
Because I notice they will go on a long poelimic in support of something, then say But
and continue with a stand completely opposite.
I support the First Amendment and the Right to Freedom of Speech,
BUT ——
Dan Kauffman (3c9c17) — 4/27/2007 @ 1:37 pmSeems to me that blogging is the modern-day equivalent of nailing a letter, poster or newsletter to a tree or hitching post. Could anyone imagine what our forefathers would think about requiring guvmet approval for such activity? Outrageous.
ManlyDad (22e85d) — 4/27/2007 @ 3:00 pmWell good for you. That was my first thought as well.
I don’t need an exemption to exercise my existing rights. My rights have to first be taken away, and then the govt makes me feel better by giving me an exemption to enjoy a partial right that used to be fully recognized.
And some people don’t see this right away, and so I’m worried.
Ray G (50194a) — 4/27/2007 @ 3:02 pmFritz,
Who, in fact, advocated for these kinds of restrictions in the first place?
Short answer: George Soros, using a passle of fake “grasasroots” groups he created. He got tired of losing political arguments (e.g. HilaryCare) and concluded that the only way he could win was by silencing the other side.
I think Ryan Sager initially exposed the conections, but his original column in the NY Post doing so is gone now. You can Google the subject, or if you prefer this looks like as good a starting point as any.
ras (adf382) — 4/27/2007 @ 4:43 pmI don’t wish to be redundant; but, the left-wing demand for campaign reform is not the problem. The problem is that the judiciary (it is predominately LW at this point, isn’t it?) is the one who can’t seem to get a handle on the concept of “Congress shall make NO law…”
Oh well, under Shariah we will not have this problem.
Another Drew (a28ef4) — 4/27/2007 @ 5:09 pmI am a WA lawyer & have followed this case. I quite agree w/ Patterico, but let me also defend the WA Sup Ct.
The trial Judge was Chris Wickham: not bright & a politcial hack. His decison made no sense — especially the injunction. As he has in other cases involving government power (personal experience here), he read nothing & paid no attention to the governing statute. This is why it was so easy for the Supreme Court to castigate him. Moreover, he is stupid enough not to know the consequences of granting an injunction that is dissolved by a higher court. He set up San Juan County & the cities for massive sanctions — which will surely come.
The Supreme Ct did not address the constitutional issue (both US & WA) because it didn’t have to. The statute on its face exempted Carlson & KVI Radio. That is as far as the court needed to go. In this way a 9-0 decision was made. Look at the concurrence. It is a strong direction to Wickham to do the right thing & make sure the attys for Carlson & KVI are well paid.
The concurrence also make Patterico’s case. It invites a lawsuit under 42 USC 1983 & the equivelent WA law. THAT case would place the First Amendment in the middle of things. It is clear there are at least 6 votes for Carlson & KVI if that comes up — if Pltf’s choose the Superior Ct & not the US Dt Ct (which would be wise).
Moreover, the court flatly accuses the county & city plaintiffs of using their prosecutorial power to suppress political speech with which it disagrees. It also accuses a major Seattle firm of facilitating the crime & unethical behavior. Strong direction to any trial court that later hears claims by Carlson & KVI.
My guess is that the WA Supreme Ct would agree w/ Patterico at least 6-3 & maybe more if the question is squarely put. Carlson is articulate and combative. This could be fun.
The fat lady is a long way from singing on this one.
DaSarge (1d2f46) — 4/27/2007 @ 5:37 pmThe problem is that the judiciary (it is predominately LW at this point, isn’t it?) is the one who can’t seem to get a handle on the concept of “Congress shall make NO law…”
My understanding is that from a sheer numbers aspect most current judges were appointed by conservatives. Though they seem to develop a tilt to the left the higher up you go.
Taltos (c99804) — 4/27/2007 @ 9:35 pmThey might be appointed by conservatives, but that doesn’t make them conservative judges. Too many “political hacks”, and too few with a philosophically conservative mindset and/or viewpoint.
We are paying the price now for the crappy schooling of the 50’s and 60’s re lawyers.
And don’t even get me started on Warren and his hand-maidens.
Another Drew (8018ee) — 4/28/2007 @ 12:39 pmIt’s not just freedom of speech in the First. It’s also freedom of the press. The two are inseperable. Last I looked freedom of the press was still an individual right, not one exclusively reserved for some legislatively-designated pseudo-royalty class called “the media.” Much as the media would wish it so.
If I publish an editorial on my weblog, that is no more and no less an exercise in both free speech and freedom of the press than is Pinch Sulzberger ranting from op/ed page of the New York Times.
AJ Leibling famously said “Freedom of the press is limited to those who own one.” Well, technology has made presses very cheap indeed. Pretty much everyone can own one today. There’s no entrance requirement to that First Amendment right, no trade-association test for exercising it written into the Constitution.
Tully (e4a26d) — 4/30/2007 @ 7:27 amFor the pedants in the audience: Hoover Institution Campaign Finance HistoryCampaign Finance Reform History
1867 Naval Appropriations Bill
Fritz (3c5a22) — 4/30/2007 @ 7:47 amGreat finance reform history
Mark (5e5a91) — 4/30/2007 @ 11:30 pmYeah thats great finance history.Mortgage refinancing at http://www.mortgagerefinancing.com adds to refinancing history.
Nick (5e5a91) — 4/30/2007 @ 11:31 pm