Newspapers Have No First Amendment Exemption from Political Spending Reporting Requirements

Regulations of campaign expenditures usually exempt the media (which has usually been read quite broadly to include most regularly published publications). Thus, for instance, the Federal Election Campaign Act, which as written banned independent expenditures of over $1000 in support of or opposition to a candidate, exempted the media — otherwise, the Act would have barred newspaper editorials for which over $1000 was spent, or which used more than $1000 worth of newspaper space (depending on how one decided to do the accounting). Buckley v. Valeo struck down the Act’s independent expenditure limits on First Amendment grounds, but it upheld various disclosure and reporting requirements; these too would have applied to media expenditures, if it weren’t for the media exemption in the statute. Likewise, bans on independent expenditures by corporations and unions (which were upheld by Austin v. Michigan Chamber of Commerce, though more recently struck down by Citizens United) have generally exempted the media, or else newspapers owned by corporations wouldn’t have been able to editorialize.

Because of this, it generally hasn’t been clear whether the media exemption was constitutionally mandated — whether a legislature could, if it wanted to, regulate newspapers’ expenditures related to political campaigns the same way it regulated other expenditures. But Olson v. City of Golden (D. Colo. Sept. 1, 2011) held that such an exemption is not constitutionally mandated.

Until 2010, a Golden (Colorado) ordinance provided that, “Any person [other than a candidate, political committee, or issue committee] making … expenditures totaling more than $50.00 shall deliver notice in writing of such expenditures to the City Clerk not later than three business days after the day that such funds are expended or services or materials provided.” “Expenditure” was in turn defined as “the payment, distribution, loan or advance of any money for goods or services related to the support or opposition of any candidate, ballot issue, ballot question or issue.”

In 2010, the ordinance was amended to exclude “any cost incurred in covering or carrying any news story, editorial endorsements, opinion or commentary writings, or letters to the editor by any broadcasting station (including a cable television operator, programmer or producer), newspaper, magazine, or other periodical publication, including any Internet or electronic publication, that is viewable by the general public and is primarily devoted to the dissemination of news and editorials to the general public.” But until then, the Golden ordinance had no such media exemption.

Marian Olson published The Voice of Golden, a free newspaper delivered by bulk-mail to 7,300 Golden households (apparently each month). The city concluded that Olson’s editorializing about various candidates and ballot measures in her October 2005 issue was worth more than $50 (since it occupied more than a page, and the standard advertising rate for the newspaper was $50/page), and that Olson therefore had to file reports, which she hadn’t done. The city sued, seeking “judgment declaring that Ms. Olson was in violation of the 2005 Ordinance, an order requiring Ms. Olson to abate violation of the 2005 Ordinance, and an award of costs, attorney fees, and interest associated with prosecuting the violation.” The city eventually withdrew its claim, in exchange for Olson’s reporting the October 2005 expenditures. But eventually Olson sued, claiming that applying the ordinance to her was unconstitutional.

Not so, the district court held:

There is no doubt that the press has a unique and important role in American society, especially in politics. However, Ms. Olson has presented no case law, and the Court has found none, holding that the First Amendment requires that the press must be excluded from campaign funding disclosure requirements….

In the absence of a press exemption like that in the FECA, a court simply applies the regulation to the publisher of a specific publication…. Therefore, the issue here is whether, under Buckley, the application of the 2005 Ordinance to the October 2005 issue of The Voice unduly burdened Ms. Olson’s speech. Whether Ms. Olson to characterizes herself as “the independent press” is irrelevant. Press or not, she must show that, as applied to her in the context of October 2005 issue of The Voice, the 2005 Ordinance does not satisfy the Buckley test.

Viewing the application of the 2005 Ordinance to the October 2005 issue of The Voice through the Buckley lens, Golden has come forward with a compelling justification for the regulation. Ms. Olson is obligated to show either that 1) Golden’s interest in and means of regulating disclosure differs with regard to publication of The Voice than it would to her as a private citizen expressing her own views, or 2) that her ability to comment and editorialize on political candidates and ballot issues in The Voice has been impaired by enforcement of the regulation. The general contention that campaign regulation might affect the ability of the press, as a general and abstract matter, “to comment and editorialize on political candidates and ballot issues,” is not sufficient. Therefore, this challenge to the law as applied to her also fails.

[Footnote: Ms. Olson relies heavily on language from the legislative history of the FECA concerning the press exemption to argue that press/media entities cannot be regulated at all. The statement she quotes is from the House of Representatives Report, which clarifies that in enacting the FECA Congress did not intend to limit or burden “the unfettered right of the newspapers, TV networks, and other media to cover and comment on political campaigns.” This phrase does not create a constitutional standard prohibiting any and all regulation of news or media entities and, indeed, Supreme Court case law indicates otherwise. Cohen v. Cowles Media Co., 501 U.S. 663, 668 (1991) (“generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news”).]

The conclusion that the press isn’t constitutionally entitled to an exemption from laws affecting other speakers seems quite right to me, and also consistent with the original meaning of the First Amendment as well as its traditional interpretation (as I discuss in my “The Freedom … of the Press,” from 1791 to 1868 to Now — Freedom for the Press As an Industry, Or the Press As a Technology?, forthcoming in the University of Pennsylvania Law Review). But in any case, I thought this case would be interesting to people who follow the debates about campaign speech restrictions.