Back in 2010, when the Supreme Court decided Citizens United, it said that we didn’t need to worry about equating money with speech. Allowing unlimited corporate expenditures on campaign ads wouldn’t distort electioneering communications because people could judge for themselves what to believe. As long as there was good disclosure about who was speaking.
The Court wrote that while it was extending full First Amendment protection to corporate political speech, disclosure “permits citizens and shareholders to react to the speech of corporate entities in a proper way” and that “[t]his transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”
It was pretty clear then and has become clearer since that this transparency was doomed and disclosure requirements would not hold up. Sure enough, the 10th Cir. just held (Oct. 14) that Citizens United counted as the press under Colorado electioneering law and did not have disclose its identity in connection with a scathing film “Rocky Mountain Heist.” The short film attacks Democrats in connection with the upcoming elections on Nov. 4. The District Court had ruled the other way a few weeks ago — finding that the people of Colorado had overwhelmingly adopted an Amendment to the State Constitution (!) to ensure disclosure of independent expenditures on electioneering communications.
Colorado Constitutional Amendment 27 provides in part that: “the interests of the public are best served by … providing for full and timely disclosure of campaign contributions,independent expenditures, and funding of electioneering communications, and strong enforcement of campaign finance requirements.”
The Citizens United film was electioneering communication. But Colorado law exempts from disclosure “news articles, editorial endorsements, opinion or commentary writings, or letters to the editor printed in a newspaper, magazine or other periodical not owned or controlled by a candidate or political party.” The question was whether the film was indistinguishable from these kind of traditional press products. Is Citizens United doing journalism?
According to the 10th Circuit, it is. The fact is that in all kinds of contexts, from reporters’ privilege to defamation to press access, courts and legislatures are dissolving the distinctions between traditional press and other forms of communications. That’s largely a good thing. We should be taking a functional approach to what counts as journalism. Doing so generally increases the amount of news and information available to the public and recognizes in the law what we all know to be true: we can all be doing journalism.
But it’s important to recognize that there remains a press function that is distinct, even if bloggers and Tweeters can be performing it. Failure to recognize any special role for an independent press function has negative consequences for speech. In the case of disclosure, it means that we get less information, less transparency, less watchdog function.
We are on the way to making the “press clause” of the First Amendment a dead letter. Before we do, we better think about the consequences for free speech values both on in terms of press freedoms and listener interests. For a discussion of this topic, a good place to start is the exchange in June Harvard Law Review between Sonja West on press exceptionalism and David Anderson, on he press as an organizer of democratic dialog.