TCS Daily

The Media's Shrinking Free-Speech Zone

By Ryan H. Sager - October 22, 2004 12:00 AM

Dan Rather, call your office.

If the Democratic National Committee gets its way, it may not be long before the anchor of "CBS Evening News" or his bosses could be hauled before the feds and fined for making illegal "contributions" to the Kerry campaign.

Sounds unlikely? It's not -- as even Democratic lawyers are acknowledging.

Newspapers and TV stations have long been sheltered from campaign-finance laws and allowed to roam free in a little free-speech zone called the "media exemption."

However, the 2002 McCain-Feingold campaign-finance law placed severe restrictions on average citizens, corporations, labor unions and non-profit groups, setting forth specific guidelines for exactly how and when they can make their views heard.

And since virtually all media outfits are owned by corporations, their rights under the First Amendment are not nearly as secure as many in the media seem to believe.

Witness the troubles of Sinclair Broadcast Group. Sinclair, which owns 62 TV stations (some of them in swing states such as Florida, Ohio and Pennsylvania), plans to air portions of a documentary critical of Sen. John Kerry Friday night. "Stolen Honor: Wounds That Never Heal" reportedly features footage of Vietnam prisoners of war and their wives, who say that Kerry's 1971 testimony before Congress prolonged their captivity and was used as a tool by their captors to lower morale.

Sinclair is clearly a media outlet, even if it has partisan leanings (its executives have contributed heavily, and almost exclusively, to Republicans).

But the DNC didn't deal with an imminent attack in the media by launching a preemptive strike on TV or radio, or by agreeing to Sinclair's offer to respond in an on-air interview. Instead, as soon as Sinclair announced its plans, the DNC brought its grievance to the Federal Election Commission, claiming that Sinclair, as a corporation, was about to make an illegal "in-kind" contribution to the Bush campaign.

This is an astoundingly dangerous legal theory -- though its emergence has been all-but-inevitable since our nation began to accept the principle that corporations have no First Amendment rights the government need respect.

If it's accepted, nothing is safe: not Air America Radio, not The New York Times' editorial page (nor its front page, for that matter), not "The O'Reilly Factor" and not Rush Limbaugh.

"If it's generally permissible to limit corporations in terms of how they can be involved in the electoral process, why grant an exception for the media?" asks a professor of law at Loyola Law School in Los Angeles, Richard Hasen.

Hasen notes that while the Supreme Court has said it is allowable for the media to get special treatment, it has by no means said that such treatment is required.

In fact, as Justice Scalia has pointed out, the Supreme Court has consistently held just the opposite view -- that the Constitution in no way elevates journalists above ordinary citizens, no matter what arrogant members of the press may think.

While Hasen believes that "most of what happens in the media is going to be fine," he expects controversy "at the edges."

Sinclair is one of those corporations being cut on the sharp "edges," having to spend money to defend itself against DNC lawyers, regardless of whether it wins or loses. Michael Moore got cut over the summer when he wasn't allowed to run TV commercials for his incendiary "Fahrenheit 9/11." The documentary is, of course, distributed by a corporation (Canada's Lions Gate Entertainment); and corporations are not allowed to run ads mentioning a presidential candidates name 60 days before the general election.

And CBS News -- which aired a segment on President Bush's Air National Guard service based on documents that were likely forged -- is also the target of an FEC complaint. A group called argues that the network's news broadcast doesn't fall under the media exemption because it was fraudulent and may have been coordinated with the Kerry campaign.

All of these cases would be ludicrous in a society that values and protects robust debate. But it increasingly seems we no longer live in such a society.

A Democratic campaign lawyer, Robert Bauer, put it thusly earlier this week on a Web site he runs, dedicated to campaign-finance law: "The media may eventually find that it is treated -- and regulated -- like a corporate interest no different from any other. It may take a while to get there, but the first movement in that direction is now underway."

Sure, Dan Rather probably won't be fined for practicing journalism, no matter how negligently, this time around. But just the harassment and the lawsuits and the endless complaints flying in all directions because of campaign-finance reform are stunting our political discourse -- and it's a drag on both the left and the right.

Furthermore, it's not just the Rathers of the world who deserve an absolute right to speech. The Moores and Sinclairs deserve it, too, as does any person or organization who might someday be on the "edges" of what the government considers permissible.

Unfortunately, however, it might take the mainstream media's own ox being gored before it realizes what's happened. Maybe then it'll make some in-kind contributions to legislators with respect for the Bill of Rights.

Ryan Sager is a member of the editorial board of The New York Post. He also edits the blog Miscellaneous Objections and can be reached at


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