Letting The State Decide Who’s A Journalist
It’s June, but there’s definitely a chill in the air. A state government agency is considering a rule that, in effect, would allow it to make decisions as to what constitutes a real news organization.
According to a story in the June 7 Bangor Daily News, the Maine Commission on Governmental Ethics and Election Practices is trying to figure out how to deal with newspapers, Web sites and other journalistic endeavors that are owned by candidates for public office. The question is whether the cost of operating these enterprises should be considered a political donation if they carry reports on the campaign.
The commission staff has proposed a rule that would exempt what it considers a legitimate news outlet from campaign finance reporting requirements if that organization displays “a pattern of campaign-related news coverage that provides reasonably equal coverage to all opposing candidates.”
There’s a lot about that phrase to be worried about.
Maine election law already specifically exempts news organizations from registering with the commission as political action committees, from having to file expenditure reports with the commission, or from requiring disclaimers on political statements as to whether they were authorized by any candidate. But the staff felt the issue of political hopefuls or their families owning such operations needed clarification.
While it’s difficult to argue that there’s no cause for concern here, it’s also impossible to ignore the implications of this sort of meddling. Until now, the amount of coverage any candidate received at any given news organization was the result of an editorial decision. Candidates who were more active, who were perceived as having a better chance of winning, or who just happened to be good friends with the publisher often got more attention. Those on the fringes, with little money, organization, or name recognition were frequently ignored. That’s not fair, but one of the consequences of a free press is that it doesn’t have to be.
Even if the entire news media made a concerted effort to give every candidate the exact same number of column inches, equal minutes of airtime, or balanced amounts of pixels, those factors wouldn’t be nearly as important in influencing the election results as the way that coverage was slanted – or not. And how much of a leap would it be for a government entity to decide that if it could dictate the amount of coverage a candidate receives in a candidate-owned news outlet, it could also mess around in deciding how biased that coverage could be. Like the gone-but-not-forgotten Fairness Doctrine that required broadcasters to cover all sides of controversial issues, this proposed rule comes perilously close to violating the First Amendment’s guarantee of freedom of the press.
The inspiration behind the commission’s decision to meddle in this cloudy constitutional territory seems to be the purchase of a majority of MaineToday Media – publisher of the Portland Press Herald, Morning Sentinel, and Kennebec Journal – by hedge-fund manager Donald Sussman, a major donor to political causes and the husband of Democratic U.S. Representative Chellie Pingree. But, as the Bangor Daily’s Matthew Stone pointed out, the proposed rule wouldn’t actually have any impact on Sussman or Pingree, because she’s a federal candidate and isn’t subject to state election law.
There’s also the issue of the Cutler Files, an anonymous website that in 2010 published a pile of opposition research on independent gubernatorial candidate Eliot Cutler. The creators of the site argued they weren’t subject to disclosure laws because they were engaged in journalism. And while they clearly had other motives, it would be tough to argue they hadn’t done the kind of digging into Cutler’s background that more conventional journalists ought to have done. That the commission rejected that argument and fined Dennis Bailey, one of the people behind the effort, for failing to disclose his affiliation with another candidate for governor ought to have made mainstream news operations nervous. Perhaps a pending court case filed on Bailey’s behalf by the American Civil Liberties Union of Maine will have some impact on future rulemaking.
If all it takes is a close personal relationship with a candidate to subject a media outlet to government censorship, what is the commission supposed to make of the Maine Wire, a news and advocacy site set up by the Maine Heritage Policy Center, a conservative think tank? The Wire calls itself a news organization, although its chief role seems to be right-wing political advocacy.
How about Gerald Weinand’s Dirigo Blue, the staunchly liberal blog with numerous scoops to its credit? Or any of a dozen or so other Web sites that make occasional forays into reporting or rumor mongering? Will some or all of them meet the commission’s exacting requirements or will they find legal notices in their mailboxes, notifying them that the heavy hand of government was about to compel their registration as campaign entities?
Are we really ready for a possible future in which Sussman is legally sanctified as a journalist and Weinand is not?
While the voters may have legitimate concerns about political brochures masquerading as reporting – such as the now-defunct Portland Maine Gazette put out last year by Portland mayoral candidate Charles Bragdon – those are issues that, until now, they’ve been able to settle at the ballot box, without any help from the government.
The commission should take note and recognize that the status quo seems to have worked well enough.
Al Diamon can be emailed at firstname.lastname@example.org.