What does the new interpretation of the media exemption mean for the future?
"The uncontroverted facts establish that the radio station involved here is a regular media entity that is not controlled by a candidate or political committee," (Justice Barbara) Madsen wrote. "The radio station was exercising one of its core media functions in broadcasting Wilbur's and Carlson's talk shows."That's a rather narrow way to define what KVI does. What, do they have to hang a sign out front that says "K-GOP Radio?"
Because objectivity isn't written into the exemption, and because we do no longer have a Fairness Doctrine, the media exemption covers outlets that promote one political point of view and exclude others.
With the exception of Air America and hosts like Stephanie Miller (Democracy Radio) or Ed Schultz (Jones Radio) the medium is almost completely dominated by conservatives, including a number of of far-right extremists.
A few righties are crowing about "a victory for free speech," but of course, nobody wanted KVI to be silenced - just be honest and follow the law - which as the lower court interpreted it, meant reporting time spent on campaign activity as a contribution. Michael Hood at BlatherWatch put it well:
Our issue was never the talk hosts' right to advocate- it was the unfair advantage they had using the airwaves for non-stop on-air organizing, and logistical planning which clearly seemed to violate election rules.At issue is the power that corporations (like Fisher Broadcasting, which owns KVI) are allowed to exercise using the commons - in this case frequencies licensed to them from the public airwaves.
Way more than mere political discussion or preaching a point of view, it was the nutty-gritty specifics of petition distribution, meet-ups, drops, and other logistical planning; formulation of signature-gathering strategies and tactics with campaign workers and volunteers in real time on the air.
It was hours, days, and weeks of expensive airtime available at no charge to Kirby, John anmd the anti-roads campaign. The opposition could never afford a fraction of the continuous daily political infomercials gifted the campaign by these talk shows. (It was an arguable distinction, one perhaps only of paperwork, but Carlson and Wilbur WERE the campaign, not just citizen/entertainers exercising their blessed 1st amendment rights).
Their employees used that public resource in a one-sided, relentless campaign to promote one portion of the political spectrum in taking action against another portion of the political spectrum.
Asking for a valuation of the airtime used by Wilbur and Carlson to promote Initiative 912 is hardly an assault on free speech.
Luckily, KVI and its hosts Wilbur and Carlson (basically conservative political campaign organizers with microphones) didn't succeed with Initiative 912, which demonstrates that opponents (including this organization) were able to overcome an early disadvantage in getting an important message out to voters (namely, that tax cuts have consequences!)
It's interesting to ponder - what would conservative reaction be, as Hood alludes in a slightly different context in his post at Blatherwatch, if David Goldstein started using his show as a tool for qualifying progressive ballot measures? He could spend all of his air time soliciting donations, planning meetings, and organizing for victory. He'd never have to report anything. He's covered under the media exemption!
Today's decision severely undercuts the authority of the Public Disclosure Commission, the watchdog that's slowly turning into a paper tiger, which is still reviewing the ruling. Many Republicans have long held an attitude of contempt towards the PDC and disclosure regulations anyhow (ahem, Tim Eyman), as evidenced by the huge sums of untraceable money funneled into Washington by Howie Rich in support of Initiative 933 last year.
The ramifications of this decision are important. Radio hosts are allowed to organize campaigns, so columnists must be too. It's not a stretch to imagine a columnist using space to encourage donations, list meeting times and engage in all the other activity usually associated with political campaigns, and then claim it was "news" or even "journalism", thus avoiding the requirement to report paid advertising.
Last year we saw newspaper publishers abandon any pretense of neutrality in support of a repeal of the estate tax. Why would they now risk making formal donations, when the path to unregulated, unlimited political campaign organizing masked as journalism is so clear?
The Court sidestepped questions about free speech and transparency in elections, but neither issue is going to go away. Citizens have a right to know who is trying to influence their vote.
Those who enjoy freedom of the press have traditionally been those who own a press, and while the Internet is changing that, it's a sad day when the broader public interest in disclosure is trumped in favor of exempting corporate media and allowing overt political campaigning (which is exactly what Carlson and Wilbur did).
The solution to ending right wing dominance and corruption of the traditional media may be to overhaul rules and regulations about media ownership.
The bright side to this decision, which Andrew discusses in his post on the ruling, is that online media and bloggers may end up being protected too.
The United States Constitution does not begin with the words "We the radio hosts". It does say "We the people" - and the Internet is surely the medium of the people if there ever was one.