Freedom to be a Press

On September 25, 1690, Benjamin Harris issued in Boston the first and only installment of colonial America’s first multi-page newspaper, Publick Occurrences.   The outraged colonial government arrested the publishers, destroyed all copies of the paper and suppressed further publication.  They also issued a blanket warning against any future attempt to communicate with the public without official license from the government.

Press freedom has come a long way since that difficult start.  The recent Supreme Court decision (Citizens United v. F.E.C.) striking down the electioneering restrictions previously enforced upon corporations is a major, and long-awaited, advance in press freedom.  I imagine that this decision (public discussion of which was mostly consumed by the Obamacare debate) will be weighing heavily over the upcoming battle for a new Associate Justice on the Court, especially given Pres. Obama’s unseemly (and incorrect) derision of the decision in his State of the Union Address.

Campaign finance restrictions are usually debated in terms of freedom of speech.   I think that is a mistake.  This is primarily a press issue, not a speech issue.  Both are protected in the Constitution for good reason.  Let me explain.

Two intrinsic characteristic of press freedom are essential to keep in mind.  First, freedom of the press is the right to engage in mass communication, to devote financial resources to disseminating ideas to a broader group of people than can be reached by standing on a soapbox in the town square.  The Founders believed in freedom of the press in spite of any guarantee, and ample evidence to the contrary, that the press would be balanced, honest, responsible, or in any way representative of the views of the electorate.

Second, and most important, freedom of the press means freedom to be a press.  Running a political TV advertisement during an election season is as much an activity of the press as is writing an editorial for the New York times. An important aspect of the Court’s decision is that it increases press freedom by further weakening the established media’s grip on the flow of political opinion.  The New York Times Corproation can still print what it wants, but now it has less power to define who gets to be a press and who does not.

Not surprisingly, the group that has campaigned the hardest for suppressing press freedom through campaign finance regulation over the years are those that are most threatened by these new technologies: the mainstream media.  As George Will has said, “the media, which comprise the only intense constituency for campaign finance reform, advocate expanded government regulation of all political advocacy except that done by the media.”

Will the Courts’ decision shift the balance of power in Washington to corporate interests?  Perhaps.  But many powerful and well-financed groups (including unions) now have increased abilities to counter corporate messages, without having their messages filtered by the FEC or by established media outlets.  Furthermore, given the high percentage of ordinary Americans who are shareholders in American corporations, these corporate interests are, in an important way, the interests of ordinary Americans.  Overpaid, greedy CEOs make handy, simple targets for our anger and frustrations.  But who else is going to create jobs, and who else is going to create the profits that fuel our 401K retirement plans?

Deep in the heart of nearly every journalist is the desire to tell the story as she sees it and to correct public misconceptions.  The problem comes when one group of people is allowed to say, “We are the press, and you are not.”  The decision in Citizens United says we all have the right to participate in press freedom.  If I own a press (in my case, a computer and an internet connection), I get to be part of  “the press.” Pileus is a proud new member of the press (just don’t call us “journalists,”  since that would be a low blow).

The McConnell decision a few years ago which upheld McCain-Feingold was one of the worst judicial arguments in the history of the Court.  Kudos to the Court for ignoring stare decisis and undoing the Constitutional damage done by that decision.

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