January 23, 2004

January 23, 2004 | Commentary on Legal Issues

Why Ignore Supreme Court's Threat To Free Press?

Having spent years as a newspaper reporter and editor, I am proud to be called an "ink-stained wretch." But I am mystified by the newsroom silence about a legal dagger aimed at the heart of the First Amendment and the free press.

That silence should worry every citizen who cares about preserving his or her right to speak out on the issues of the day. The Constitution makes journalists our independent watchdogs to keep the politicians honest. We all lose if the politicians muzzle our watchdogs. But must journalists help tie their own muzzles?

The dagger is the underlying logic of the Supreme Court's recent McConnell v. FEC decision upholding McCain-Feingold, the Bipartisan Campaign Finance Reform Act of 2002, including its ban on soft money campaign contributions and issue ads on television and radio.

Congress "shall make no law" limiting freedom of speech or the press, according to the First Amendment to the Constitution, but with its recent decision the Supreme Court now says Congress can limit First Amendment freedoms to avoid the "appearance of corruption" in politics.

The law bans issue ads, which often praise or blast incumbent congressmen for their votes on key issues, for 30 days prior to a primary and 60 days before a general election. The ban should be especially worrisome for journalists whose livelihoods depend upon the unfettered expression of opinion and public debate on the news of the day.

If issue ads create a corrupting appearance 60 days before an election, they must be corrupting 61 or 90 or 120 days before votes are cast. And ads that corrupt on radio and TV must also corrupt in the newspaper and on the Internet. See how the Supreme Court's logic sets a precedent that can only lead to growing restrictions on freedom of speech and the press?

That is why Justice Clarence Thomas ended his stinging dissent with this disturbing prophecy: "The chilling endpoint of the Court's reasoning is not difficult to see: outright regulation of the press." No wonder Justice Antonin Scalia called the decision "a sad day for freedom of speech."

Shouldn't journalists be up in arms when a Supreme Court Justice says government censors in the newsroom could be within sight? Evidently not, judging by the Web sites of the American Society of Newspaper Editors (ASNE), Reporters Committee for Freedom of the Press (RCFP) and the Society of Professional Journalists (SPJ). I found no mention of the decision on the three Web sites, so I e-mailed leaders of the groups asking about their silence.

Other issues have preoccupied ASNE and RCFP, said Scott Bosley, executive director of the former, and Rebecca Daugherty, director of the latter's Freedom of Information Service Center. "The issue, while important, is not smack in the middle of our wheelhouse, as so many critical public records matters have been in the past couple years," Bosley said. Conflicting editorial stands by various newspapers also would make finding unanimity difficult, he said.

"Campaign ads have traditionally been a back-burner issue for us, and we've had a lot on our front burners these last few years," Daugherty said, noting that she had not seen the Thomas or Scalia dissents but would "see if we can at least get those covered in some context."

SPJ has its regional conferences coming in April. Surely these gatherings would be appropriate forums for discussing the Supreme Court decision. Yet only four of the eight folks listed on SPJ's web site as conference contacts responded to my e-mail inquiries. None of their conference programs include anything on the Supreme Court decision. All three organizations do great work on those other issues, but doesn't the specter of government regulation of the press deserve at least some comment?

ASNE's Bosley suggested part of the explanation here. Many of the nation's most influential editorial pages supported McCain-Feingold and lustily cheered the Supreme Court decision upholding the law, including the Atlanta Journal-Constitution, Baltimore Sun, The Los Angeles Times, The New York Times and The Washington Post. Having second thoughts now wouldn't look so good.

Even so, big corporations own all of those papers. How enthusiastic will they be when federal bureaucrats decree editorial pages owned by big corporations can't express opinions about candidates or their positions if doing so creates the appearance of corruption?

Mark Tapscott is Director of the Center for Media and Public Policy at The Heritage Foundation (heritage.org) and oversees its Computer-Assisted Research and Reporting program.

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