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Public Affairs Council
 

Giving the Press a Pass

We have now come full circle in the debate over free speech and independent political advertising.

First, the Supreme Court ruled in the Citizens United case that prohibiting independent political speech by corporations and unions violated the First Amendment. Then, opponents of the court ruling sought to weaken it by proposing legislation to broaden the disclaimer and disclosure regulations for companies.

Now, the Federal Election Commission has decided 4-1 that Citizens United, a non-profit organization that produces political films, is eligible for a press exemption. That means campaign finance laws - including the proposed DISCLOSE Act - won't apply to the group that got this whole controversy started in the first place.

All I can say is "Wow."

Under federal law, the press exemption is available to those who publish "a news story, commentary, or editorial," notes SCOTUS Blog. Citizens United was denied this exemption six years ago. Since that time, however, it has produced and distributed 14 films, including "Hillary: The Movie" and "HYPE: The Obama Effect." In an opening statement at the FEC meeting, Vice Chair Cynthia Bauerly, a Democrat, observed that technology "has changed nearly everything about the media," reports BNA. As a result, she said the FEC's rulings need to reflect this changing environment.

But here's a bigger "wow:" This ruling is just one more step along a path toward a world in which it may be impossible to distinguish members of the news media from, well, everyone else.

"Reportorial journalism is getting smaller," reports the Pew Research Center for the People & the Press in its annual State of the News Media report. "But the commentary and discussion aspect of media, which adds analysis, passion and agenda shaping, is growing - in cable, radio, social media, blogs and elsewhere." Ironically, writes Pew, new media sources "are largely filled with debate dependent on the shrinking base of reporting that began in the old media." In a recent Pew study, 80% of the links from blogs and social media sites are to so-called "legacy" press organizations.

Nevertheless, if all forms of commentary and information-sharing are forms of media, then don't their sponsors deserve the same rights and privileges enjoyed by The New York Times and CNN?

This is not a small question. Media definitions affect more than campaign finance laws. Take the process of press credentialing, which has become increasingly contentious. Groups such as the Electronic Frontier Foundation (EFF), for instance, claim the Senate Press Gallery should include online journalists and bloggers when handing out credentials for the House or Senate floors. The group also points out that government agencies are prohibited from deciding "arbitrarily" whether an individual is entitled to press credentials.

Though anyone may make a Freedom of Information Act request, members of the news media receive a fee waiver and often get faster service. When it comes to such requests, "the definition of news media has been interpreted broadly," says EFF, "and we believe that a blogger who is gathering news for a public blog should qualify."

Many states also have "shield laws" that protect a journalist's free speech and privacy rights. While there is no federal shield law, a concept called "reporter's privilege" - though still debated by the courts - allows a reporter to conceal the names of confidential sources and unpublished information provided by those sources. As bloggers do more and more investigative reporting, many believe they deserve the same rights as traditional reporters.

The most important outcome of the blurring of the media definition may be the emergence of what Pew calls "self-interested information providers." These include groups such as Citizens United, think tanks, companies, activist organizations and the government itself.  Here's how Pew describes these latest entrants in the information and news business:

Some are institutions frustrated by the shrinking space in conventional media and the absence of knowledgeable specialists to cover their subjects. Others are partisans and political interests trying to exploit a perceived opportunity in journalism's contraction. There are varying degrees of transparency in these efforts about the financing and intentions. Some are quite clear. Others present themselves as purely journalistic and independent when in fact they are funded by political activists, yet only by digging and cross-referencing websites can the agenda and financing be divined.

Because of specific laws protecting or exempting the press, Congress may eventually try to decide whether these groups should be treated as media organizations. In the meantime, regulators aren't sure what to do. FEC Commissioner Steven Walther, who cast the lone dissenting vote in the Citizens United matter last week, previously supported expanding the press exemption. But now he thinks opening this door too widely would reduce disclosure levels. He called for the FEC to address criteria for the press exemption in a new rulemaking.

But how do they do that when the NRA hosts the "NRA Digital Network," featuring daily news updates and live video programming? Or when the Huffington Post, with 13 million monthly readers, recently made the top 10 current events and global news sites? Or when Mashable - the world's largest social media blog - receives 25 million monthly page views and sells a lot of advertising?

With each passing week, we become less able to decide who deserves a press pass, much less an exception to existing laws. "The only certainty," says Pew, "is that these new players are increasingly vying for the public's and the media's attention, and their resources, in contrast to that of traditional independent journalism, are growing." 

Comments? Email me at http://pac.org/contact/blog.