TCS Daily


Campaigns and Technology

By Duane D. Freese - April 3, 2002 12:00 AM

The Washington Post has a knack for unintentionally framing issues in a way that proves exactly the opposite point they want to make.

This week, the national capital's largest circulation newspaper opined that there was no damage done to free speech by the recently passed McCain-Feingold campaign finance reform because:

"The NRA (National Rifle Association) would remain free, at any time, to spend hard money - money raised and disclosed under federal campaign law - on whatever kind of advertising it wished to purchase. It could also use its general revenue, or unregulated money, to communicate its views to its members and public and distribute its own publications. The only thing it could not do is use unregulated funds to buy broadcast advertising that contains an electioneering message in the immediate vicinity of Election Day. The point here is not to restrict the NRA's speech - or that of any other advocacy organization - but merely to require that, to the extent it engages in federal electioneering, it follows the same rules as other entities participating in the election.

"It is true that the law treats the press differently from other corporations; the limited restriction McCain-Feingold places on the NRA would not apply to the Post. But this is nothing new. Corporations, after all, have long been banned from direct campaign spending, but the law has also made clear that this restriction does not include spending on 'any news story, commentary, or editorial distributed thought the facilities of any broadcasting station, newspaper (or) magazine. ... Importantly, the exemption protects the press only in its role as the press. If a newspaper wished to step aside this role, and buy television ads supporting or opposing a particular candidate within 60 days of a general election, it, too, would have to use hard money."

All of which raises questions: What is the press? What is its role? And how does one become "the press" to enjoy its freedom?

If you think the answers to these questions are easy, then you have never heard of Matt Drudge or taken a journalism history course. You also have never thought much about why the press in this country is not licensed or about the changes being wrought by technology to the dissemination of information.

Unfortunately many in the press, apparently including the Post's editorial writers and editors, haven't given much thought to it either.

The term "press" itself derives from the means by which the first newspapers were printed - by a printing press, Gutenburg's machine.

But considering that even modern newspapers aren't "pressed" so much as run through a chemical attraction and repulsion process, we'd better not define the press by technology, that would leave too much of the modern press out, wouldn't it?

Instead, we turn, as the courts have done, to its function, or role. And here there is scant support at all for the Post claiming some difference between itself and a commercial corporation or the NRA or a political party or any other organization for a preferential free speech right.

The U.S. Supreme Court, no less, enunciated the standard for determining whether a corporation had the same free speech rights as a newspaper in 1978.

In First National Bank of Boston v. Belotti, the court ruled: "The expression proposed by appellants, namely, the expression of views on an issue of public importance, is at the heart of the First Amendment's concern. There is no support in the First or Fourteenth Amendment, or in this Court's decisions, for the proposition that such speech loses the protection otherwise afforded it by the First Amendment simply because its source is a corporation that cannot prove, to a court's satisfaction, a material effect on its business."

This view makes perfect sense in the historical context, in that among the first newspapers, so to speak, were well heeled merchants in Germany who sent around tidbits of news along with circulars about their services and wears. News was an attention grabber to get people's attention for other things, much like the Post and its advertising today.

The early "press" in this nation wasn't a neutral observer, either. It often was commercially interested, or politically biased, as the names of some existing newspapers suggest. Where did The Republican American of Waterbury, Conn., or the Arkansas Democrat Gazette, or the Sunday Republican of Springfield, Mass., or the Tallahassee Democrat, or the Rochester, N.Y., Democrat and Chronicle get their names?

The press was in many instances a party organ. So, why ignore that history and take away that right of a free press from the political parties of today? Why single out corporations, the NRA, unions and other organizations for particular rules and not the rest of the press? Should we really parse free speech so that only the "institutional press," (e.g., the Post) get the words while the rest of the nation gets the space in between - that is to say, nothing?

The premise is that there is simply too much money and influence of corporate and special interests in politics distort the process. Look at it all, they say: $1.2 billion in the last federal election cycle - up more than $300 million since 1996 - and nearly half of it in "soft money" donated by special interests to the parties.

Wow! That's $12 a household spent by politicians getting their messages to voters, up from $9 a household four years earlier.

But wait a minute. Is that really a bad thing? Newspapers and broadcasters spend that much on self-promotion. They have to. The number of television stations has more than doubled in the last decade. People spend their days tied to computers and cell phones. The average household is spending $100 more a year now on telecommunications than it did four years ago. As modern technology provides more channels of communication over the air and by wire, all those trying to deliver messages to them are scrambling to get as large an audience as possible.

Politicians aren't any different. So, the excuse that there's too much money in politics is hogwash - unless politics isn't as important as, say, promotions of "Ally McBeal" or the Post's Sports section.

But what about the influence of self-interested corporations and organizations? Doesn't that distort the process? That's historical hooey, too. It's part of the process, and always has been. It's in the clash of special interests that common interests are sometimes forged - by forcing compromise on everybody. This is, after all, a representative democracy - and everybody is self-interested and yet has a stake in it.

Indeed, it is because special interests exist in everything that we need freedom of speech and the press - to inform about all sides of the issue.

But unlike the Post editorial board, when I speak of the press I don't mean just it and, say, The New York Times, NBC, CBS, ABC, Fox, The Wall Street Journal and USA TODAY. I mean every pamphleteer or blogger on the Internet, every company newsletter. I take the press and speech to be a statement by our founders meant to encompass all political expression. For that's what it means, unless we want to tie it solely to people with an actual printer that involves pressing.

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