The briefs before the Supreme Court fall heavily to the side of the appellant, Citizens United, and one that stands out for its sponsorship as well as its content has been filed by the Reporters Committee for Freedom of the Press.  Its steering committee is stocked with luminaries of the profession.   And it represents the views of an industry which, at least in the expression of editorial opinion and investigative news material, has spoken forcefully for campaign finance regulation. 

     And yet here is a brief, short and to the point, arguing that McCain-Feingold cannot be applied to prohibit access, by video-on-demand or by other means, to hard-core political documentaries, chock-full of opinion, like Hillary:  the Movie.

     The Committee does not believe that the law’s "news media exemption" provides adequate protection for traditional news commentary or editorial endorsements.  Times have changed, the Committee reminds the Court: new technologies may come to dominate the means of news commentary distribution and McCain-Feingold’s structure will be subjected to dangerous stresses in distinguishing illegal corporate from constitutionally protected media corporation spending on political commentary. 

     Criticizing the lower court decision, which found against the makers of Hillary, the Committee objects to any:

uncertain line between the constitutionally-protected and the felonious [which] "offers no security for free discussion," and thus "compels the speaker to hedge and trim." [citation omitted]. Nor is the worry of FEC action speculative, since the traditional news media regularly engages in "express advocacy" by explicitly urging readers or viewers to vote for an endorsed candidate.

Reporters Committee Amicus Br. at 9.

     This line of argument leads the Reporters Committee to embrace Hillary as time-honored news commentary, no different than 19th century newspaper criticisms of Andrew Jackson or John Adams.  This from the brief:  "Editorial tastes and political affiliations aside, the only objective distinction between the critiques of Senators Adams, McCarthy, and Clinton is the medium in which each was distributed." Id. at 5.

     The brief candidly puts its position in the context of contemporary economic upheaval in the news industry.  "[M]any newspapers have been forced by the economy and new technology to publish only in electronic formats."  Id. at 10. Video-on-demand is one new outlet; TiVo another; and the Committee notes that the evolution in form is sure to continue.  No longer then is the dividing line between constitutionally protected news commentary and regulated political opinion "relatively intuitive and objective".  Id. at 8. 

     This last suggestion is remarkable.  Sound intuition is less of a requirement when there is something "objective" to guide the drawing of a line.  It is by no means accepted all around that the media exemption is both intuitively obvious and objectively grounded.  Some students of campaign finance law might argue that it is neither.

     At any rate, the Reporters Committee sides with the makers of Hillary.  Its position may hold sway over the press coverage.  An Adam Liptak piece in the New York Times, published yesterday, notes the Reporters Committee’s arguments and reviews the issues before the Court without, notably, falling into the standard Times-type warning about the imminent collapse of the campaign finance protections needed for the average citizen. 

Bob Bauer