Separation of Press and State
posted by Gerard Magliocca
Times are tough in the newspaper industry. Its business model is under pressure from the Internet, as more and more people get their news and look for classifieds online. Throw in the sharp downtown in the economy, and the result is that several major papers have folded or filed for Chapter 11.
Senator Ben Cardin wants to stop the bleeding through proposed legislation that would allow papers to become 501(c)(3) tax-exempt organizations. This would give them a competitive advantage against other sources of advertising, and, in effect, be a subsidy. In exchange, newspapers could no longer endorse candidates on the editorial page or through their news coverage.
At first glance, tax-exempt treatment for papers is appealing because it resonates with the structure of the First Amendment. After all, the other organizations covered by that text — churches — are given 501(c)(3) status. And this serves the separation values underlying the Free Exercise and Establishment Clauses. The state cannot use its taxing power to inhibit religion or discriminate against religious groups, and churches cannot get directly involved in the political process.
Does the same logic apply to newspapers? Well, not exactly. We want an adversarial relationship between the press and the government, but that is not equivalent to separation. The former involves conflict; the latter involves abstention. Thus, it’s not clear to me that requiring papers to “take the veil” and end political endorsements (especially in local races) is appropriate. Furthermore, the state would be required (at least in theory) to police papers to make sure their political coverage did not cross the line into advocacy. Granted, in the religious context the IRS rarely does anything about allegations that churches are engaged in politics, so perhaps a ban on editorial endorsements would be enough. The litigation on advocacy restrictions under McCain-Feingold, though, does not give me confidence that this issue would be easy to sort out.
In the end, this seems like a situation where the market should be allowed to work its will. Internet outlets serve many of the same First Amendment values as newspapers, and while the substitution of one for another may be harmful to the elderly or folks who just like newspapers, that is probably not enough to justify a federal intervention.
April 10, 2009 at 8:41 am
Posted in: Constitutional Law
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Responses (2)
A.W. - April 10, 2009 at 10:19 am
Well, there is no constitutional value here. The establishment clause applies to religious freedom and not freedom of expression. So if the government says “Catholicism is better than protestantism” that is a constitutional problem, but if it says “capitalism is better than communism” it isn’t.
And i don’t take you as disagreeing with that point.
I think policy-wise, i agree about 100% with your thinking.
A.J. Sutter - April 11, 2009 at 4:06 am
Isn’t there an obvious problem with the theory of Cardin’s proposal: that in order to save free expression it would be necessary to curtail it? Moreover, your satisfaction with the notion that Internet outlets are equivalent ignores the the economics of ad revenue. Internet ads don’t permit enough income to support the large journalistic staffs that made newspapers worth reading.
It’s also deeply troubling that you apathetically conclude “this seems like a situation where the market should be allowed to work its will.” Even Harvard Business School professor John Quelch, who makes a bizarre argument in a recent book that marketing is more “democratic” than US democracy, recognizes (in Ch.
that market forces have on balance not been pro-democratic in their impact on news media.
Cardin’s proposal is clearly flawed (and not-so-subtly designed to protect incumbent legislators). But your heightened solicitude for market values over democratic ones is very depressing to see in a law professor.
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