Expanding Exemptions

From the Fall 2009 issue of The News Media & The Law, page 5.

Sometimes, figuring out whether speech was an act of journalism can determine whether the speaker is spared years in federal prison.

Two laws that do just that, one regulating campaign speech, the other covering depictions of animal cruelty, are currently being challenged in U.S. Supreme Court. Both statutes contain clauses that exempt journalists — or at least those working for traditional media organizations — from criminal penalties that apply to other speakers. In both cases, the justices have questioned whether these media exemptions do enough to quell First Amendment concerns over the statutes.

Campaign Speech

The first, Citizens United v. FEC, is one of the most closely watched cases of the year. The Supreme Court may use it to decide whether any restrictions on corporate campaign speech are permissible under the First Amendment.

But the issue at the heart of the case is whether and how the government can draw a line between prohibited electioneering and protected news media commentary. While the U.S. Supreme Court has allowed restrictions on corporate speech during elections, it has guarded the right of media corporations to cover elections.

Citizens United deals with whether the Bipartisan Campaign Reform Act of 2002 — also known as the McCain-Feingold Act — can be used to regulate a documentary that criticized Hillary Clinton during her campaign for the presidency. The Federal Election Commission claimed that the film was nothing more than a 90-minute campaign ad, while its producers argued that it was a documentary film entitled to the same protection as traditional news media commentary.

McCain-Feingold created new regulations on speech that Congress classified as electioneering communications. These are broadcast statements that refer to “a clearly identified candidate for Federal office,” and are made within 60 days of a general election or within 30 days of a primary or caucus. Such communications are subject to a variety of restrictions, including limits on funding by corporations and labor unions.

The statute contains a news media exception for speech that “[a]ppears in a news story, commentary, or editorial distributed through the facilities of [a] broadcast, cable, or satellite television or radio station.”

It is not the first campaign finance law to do so. For decades, exemptions for the news media have been added to campaign finance statutes. The Supreme Court has suggested that they must contain media exemptions or risk violating the First Amendment. The high court observed in a 1948 case that Congress made clear, when debating an early campaign finance statute, that the law should exclude the activities of the press. The Court added that if such a law “were construed to prohibit the publication, by corporations and unions in the regular course of conducting their affairs,” the justices would have “the gravest doubt” about its constitutionality. Similarly, the 1966 Supreme Court case Mills v. Alabama invalidated an Alabama law that made it a crime for newspapers to publish editorials on Election Day, concluding that the “Constitution specifically selected the press … to play an important role in the discussion of public affairs.”

Still, the media exemptions written into McCain-Feingold and similar statutes force agencies and courts to decide who does and does not qualify for them — a question that becomes trickier as technology evolves and agencies get more aggressive about regulating campaign speech.

Citizens United has criticized the FEC’s emphasis on whether the speech comes from a television network or other member of the institutional media.

“It’s hard to know where the FEC draws the line between protected ‘news commentary’ and unprotected political speech,” said Matthew D. McGill of Gibson, Dunn & Crutcher LLP, an attorney representing Citizens United.

“The notion that when Chris Matthews or Bill O’Reilly criticizes a presidential candidate, it’s protected ‘news commentary,’ but when Citizens United does so, it’s a felony, seems to us completely incompatible with the First Amendment,” he added.

In a friend-of-the court brief, the Reporters Committee added that the distinction was clearer when the FEC only attempted to regulate traditional 30- and 60-second ads. “As long as the distinction between regulated advertising and exempt news commentary was relatively intuitive and objective, it provided the breathing space reporters need to perform their constitutionally protected role,” it said. But when the government attempted to regulate the Clinton film, it replaced “a bright-line distinction with the subjective determinations of the FEC.”

Justice Antonin Scalia also found fault with applying the media exemption only to the traditional, institutional press, asking the government’s lawyer during oral argument: “You think in 1791 there were — there were people running around with fedoras that had press — little press tickets in it, ‘Press’? Is that what ‘press’ means in the Constitution? Doesn’t it cover the Xerox machine? Doesn’t it cover the right of any individual to — to write, to publish?”

Covering Animal cruelty

Another case before the high court is testing the boundaries of a press exemption in a law that criminalizes dog fighting videos and other depictions of animal cruelty. Those defending the law rely, in large part, on its exemption for journalism and other material deemed to have serious value.

U.S. v. Stevens involves a 10-year-old law under which anyone who knowingly possesses or distributes a “depiction of animal cruelty with the intention of placing that depiction in interstate or foreign commerce for commercial gain” faces up to five years in federal prison. A Virginia man, Robert Stevens, was sentenced to more than three years in prison for making videos that include footage of dog fighting.

Like the McCain-Feingold Act, the statute Stevens is charged with violating has a clause that protects the news media by exempting any material with “serious religious, political, scientific, educational, journalistic, historical, or artistic value.”

This serious value exemption is a less protective version of a standard used in obscenity cases, and it has been criticized as allowing juries to discriminate against unpopular viewpoints. “When juries decide what material has serious value, there is the risk that they will allow their own values to influence what they see as meeting the test,” said David Horowitz of the Media Coalition, which filed a friend-of-the-court brief urging the Court to strike down the law.

“The need to show value also works against the independent or small press journalists,” Horowitz added, “because of a potential bias among jurors that something has serious value because it was published or aired by large institutional media, while something on a blog or in a small publication must do more to establish serious value.”

Stevens’ attorneys argued that the distinction between serious depictions and others is unfair. The law “permits the Discovery Channel to broadcast images of catch dogs hunting wild boar,” they wrote in court papers, but Stevens’ use of similar images “makes him a felon.” They argued that “just as the First Amendment forbids the imposition of exceptional burdens on journalists, it equally proscribes imposing disparate burdens on a speaker for lacking journalistic value.”At oral argument, the justices seemed similarly troubled with the vague line the statute draws. Justice Sonia Sotomayor compared the defendant’s videos to the acclaimed 2005 documentary Off the Chain, noting that the latter “had much, much more footage on the actual animal cruelty than the films at issue here.”And Justice Stephen Breyer added that the terms of the exception are “a little vague,” noting that those filming such varied activities as bullfighting, hunting, animal slaughter, and the production of foie gras “won’t know if [an image] falls within” the exemption.

“Why not do a simpler thing?” Breyer asked. “Rather than let the public guess as to what these words mean, ask Congress to write a statute that actually aims at those frightful things that it was trying to prohibit.”