Originally published in The Forecast, Vol.4, N. 9 June 1997

By 

Dr. Herbert W. Titus, J.D.

President of The Forecast Foundation

2400 Carolina Rd.

Chesapeake, Va. 23322

Reprinted by Permission

Editor’s note: Though this article was originally printed three years ago, this issue is still continues to be a major issue. We have included all of the series of articles linked together so that you may understand the history behind the current law, how it violates the Constitution, and what could be done to change the current law. Some format changes have been made but no content has been changed from the original.

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At the heart of the current system of campaign finance regulation are laws limiting the amount of individual campaign contributions and requiring disclosure of the names, addresses, and occupations of the contributors. Such limits and disclosures are required, we are told, in order to prevent people with money from corrupting the political process and in order to inform the electorate who is giving money to whom (See Titus, "Campaign Reform - Politicizing the First Amendment," The Forecast Vol.4, N.6, 10-15 March 1997.

Exempt from these controls, however, are the media - The New York Times, The Washington Post, Newsweek, Time, U.S. News and World Report, ABC, CBS, NBC, FOX. Why? They edit the news stories, write editorials, and select columns that support and oppose political candidates. Indeed, in some cities the local newspaper and television can make or break a candidate.

With that kind of power, the media are just as likely  to corrupt the political process as any other person or entity with power and money. Yet, there is absolutely no push by the reformers to include the media in their hard court press to put even more restrictions on the financing of political campaigns.

The reason is twofold. First, the media would strongly oppose any such proposal in the name of the Freedom of the Press. Second, the media would be right to oppose such intrusions, for the Freedom of the Press should be an absolute barrier to any such regulations.

But the Freedom of the Press, rightly understood and applied, should also be an absolute bar to government regulation of the organization and financing of political campaigns. For the Freedom of the Press is not a special privilege available only to the media, but it is a freedom enjoyed by all, including candidates for political office and their supporters.

THE PRESS

In 1975, Associate Supreme Court Justice Potter Stewart wrote that the "Free Press Clause extends protection to an institution":

[The] primary purpose of the constitutional guarantee of a free press was [to] create a fourth institution outside Government as an additional check on the three official branches. [T]he relevant metaphor [is that] of the Fourth Estate. [The First Amendment thus protects] the institutional autonomy of the press. Stewart, "Or of the Press," 26 Hastings L.J. 631, 633-34 (1975).

Three years later, Chief Justice Warren Burger refuted Justice Stewart's claim - and on two grounds. First, the Chief Justice asserted that " the history of the Clause does not suggest that the authors contemplated a 'special' privilege or 'institutional' privilege." Second, he stated that "the very task of including some entities within the 'institutional press' while excluding others [is] reminiscent of the abhorred licensing system [that] the First Amendment was intended to ban." Therefore, he concluded that "the First Amendment does not 'belong' to any definable category of persons or entities. It belongs to all who exercise its freedoms." First National Bank of Boston v. Bellotti, 435 U.S. 765, 797-801 (1978) (Burger, C.J. concurring).

The Chief Justice was right. The Freedom of the Press antedated the Bill of Rights by nearly one hundred years. It had been gained only after a long and arduous fight against the English Crown which had claimed the right to decide what would be printed and who would do the printing.

In this battle for freedom, there was no institutional press independent of the Crown. Consequently, the institutional press was not a friend of freedom, but its foe, arguing for State licensing in order to maintain its monopoly position in the marketplace of ideas.

In opposition to the established press and its government allies, John Milton wrote his great apologia, the Areopagitica, calling for freedom from the Government licensing of the printing press. In 1695, Milton's ideas finally won when the English Parliament allowed the Licensing Act, which controlled the printing press, to expire. Sources of Our Liberties, 242-43 (R. Perry, ed. 1972).

By 1769, the Freedom of the Press was so well-established in England that Sir William Blackstone referred to it as "essential to the nature of a free state." IV Blackstone, Commentaries on the Laws of England, 151 (1769). And what was that freedom? Blackstone wrote:

The liberty of the press...consists in laying no previous restraints upon publications...Every freeman has the undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press. Id., at 151-152. (Emphasis added).

The Supreme Court has always applied the Freedom of the Press consistent with this comprehensive principle. For instance, in 1938, the Court had before it a case in which a Jehovah's Witness had been convicted of violating a city ordinance requiring her to get a permit from the mayor of Griffin, Georgia, before she could distribute a religious tract.

Writing for a unanimous Court, Chief Justice Charles Evans Hughes held that "[t]he press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion." Thus, the Court struck down the city's permit law as an unconstitutional prior restraint. Lovell v. Griffin, 303 U.S. 444, 452 (1938). (Emphasis added).

Five years later, the Court applied the Freedom of the Press in favor of a homeowner's unfettered right to decide whether to open his door to itinerant evangelists. Under the Press guarantee, it was the right of the homeowner, not the State or City, to decide what views would be published in the home. Martin v. City of Struthers, 319 U.S. 141 (1943).

So the Freedom of the Press belongs, as Chief Justice Burger said, to all, from newspaper tycoon to itinerant pamphleteer, from the professional journalist to the housewife. It cannot be claimed by a privileged few and taken away from the people. Yet, that is exactly what campaign finance regulations do. (Emphasis editors).

LICENSING CAMPAIGNS

In Order to enforce the contribution limitations on campaigns for federal office, the Federal Election Campaign Act of 1971, as amended, has established a licensing scheme designed to control entry into the campaign process. Any person who seeks federal office must establish an election campaign committee and register with the Federal Election Commission. And any person or other entity who wants to support that candidate's campaign must also register with the Commission. 2 U.S. C. Section 433.

Such "political committees" must thereafter keep detailed records, including the names and addresses of all persons making a contribution in excess of $10 and, in addition, the occupation and principal place of business of any person whose contributions aggregate more than $100. Buckley v. Valeo, 424 U.S. 1, 63 (1976). In addition, the candidate's major campaign committee is required to make quarterly reports to the Commission. Violation of these registration and reporting rules is punishable by a fine of not more than $1,000 or a prison term of not more than one year. Id., 424 U.S. at 63-64.

All of this has been justified by Congress and the Courts as necessary in order to protect the electoral process from potential corruption, and from the appearance of corruption, occasioned by the unrestricted investment of money into political campaigns. Id., 424 U.S. at 7, 66-68.

What is striking about the registration and reporting requirements, and the rationale for them, is that they parallel the practices and the policies of the English press licensing system which was, presumably, outlawed by the First Amendment. (Emphasis editor).

In Near v. Minnesota, 283 U.S. 697 (1931), a state court issued an injunction pursuant to a statute that prohibited the publication of any "obscene, lewd and lascivious" or "malicious, scandalous, and defamatory" publication. The purpose of the statute and the injunction was to protect the general welfare of the community from the threat of moral corruption.

The United States Supreme Court struck down the injunction and the statute, not on the grounds that the state could not protect the moral fiber of the community, but that it could not use the particular means chosen to reach that goal:

The question is whether a statute authorizing such proceeding in restraint of publication is consistent with the conception of the liberty of the press as historically conceived and guaranteed. In determining the extent of the constitutional protection, it has been generally, if not universally, considered that it is the chief purpose of the guaranty to prevent previous restraints upon publications. Id., 283 U.S. at 713.

In other words, the Court ruled that the Press guarantee barred the State from imposing any prior restraint upon publications as a means to deal with corruption of the community's morals. This ban applied equally to any measure taken by the State to impose a prior restraint for the purpose of dealing with political corruption:

...[T]he liberty of the press...was intended to prevent all...previous restraints upon publications as had been practiced by other governments, and in early times here, to stifle the efforts of patriots toward enlightening their fellow subjects upon their rights and the duties of rulers. The liberty of the press was to be unrestrained, but he who used it was to be responsible in case of its abuse. Id., 283 U.S. at 717.

Indeed, the English system of licensing of the press was designed to protect the realm from both moral and political corruption. Thus, the Star Chamber which had jurisdiction over the press, also had power over religion and "the conduct of municipal elections." Sources of our Liberties, supra, at 130.

The goals of the Star Chamber regulations of printing were twofold: "to protect the state against nonconforming religious and political opinions and to prevent destructive trade practices." Id., at 242. To achieve these goals, the Star Chamber enacted an ordinance providing for "an elaborate scheme of licensing designed to prevent the appearance of unlicensed books.":

[A]ll books were to bear the names of the printer and the author; the number of master printers was limited to twenty; no one was allowed to erect a new press or cast type without notifying the Stationer's Company..." Id.

By requiring both registration of the approved printing presses and disclosure of publishers and printers, the Star Chamber effectively precluded all unlicensed printing presses from operating. Not only did this scheme limit who could enter the printing business, it also limited the amount of money that could be expended in that business.

That is precisely what the present regulatory scheme of campaign financing does. It prevents anyone from promoting a candidate for election unless that person has a license from the Federal Election Commission. In addition, federal law, by limiting the amount that an individual may contribute to a campaign, reduces the amount of campaign publications and enforces those limits by means of registration and disclosure requirements upon candidates and their supporters. Thereby, the law imposes a prior restraint upon campaign literature as a means of combating allegedly potential political corruption in the electoral process.

In addition, by exempting the institutional press from coverage, the current regulatory scheme of campaign financing discriminates in favor of established newspapers, magazines, radio, and television, none of whom are subject to registration, disclosure, reporting, and contribution limit requirements.

Such discriminatory financial burdens have always been found unconstitutional by the Supreme Court. In Grosjean v. American Press Company, 297 U.S. 233 (1936), a unanimous Court struck down a Louisiana gross receipts tax imposed upon the advertising revenues received by "any newspaper, magazine, periodical, or publication whatever having a circulation of more than 20,000 copies per week or displayed and exhibited...by means of moving pictures."

The Court held to the tax to be violative of the Freedom of the Press, operating as a "previous restraint" against a "selected group of newspapers." Id., 297 U.S. at 249-50, 251. This principle was reiterated, and applied, by the Court in 1983 when it struck down a Minnesota use tax that had exempted most of the state's newspapers:

A power to tax differentially, as opposed to a power to tax generally, gives a government a powerful weapon against the taxpayer generally...

Minnesota's ink and paper tax violates the First Amendment not only because it singles out the press, but also because it targets a small group of newspapers. The effect of the $100,000 exemption is that only a handful of publishers pay any tax at all... Whatever the motive of the legislature..., we think that recognizing a power in the State not only to single out the press but also to tailor the tax so that it singles out a few members of the press presents such potential for abuse that no interest suggested by Minnesota can justify the scheme. Minneapolis Star and Tribune v. Minnesota Comm. of Rev., 460 U.S. 575, 585, 591-92 (1983).

If the Freedom of the Press means anything, it must mean that the Government cannot on the one hand exempt the institutional press from campaign finance control, and on the other, impose financial limitations on candidates' campaign literature.

Continued in PART FIVE