The Trump era has seen an erosion of the distinction between journalism and partisan politics, with much of the mainstream media in open opposition to the president. “Balance has been on vacation since Mr. Trump stepped onto his golden Trump Tower escalator . . . to announce his candidacy,” New York Times columnist Jim Rutenberg wrote in August 2016.
Three years later, the holiday continues. Slate last month published a leaked transcript of a staff “town hall” at the Times. “We built our newsroom to cover one story,” executive editor Dean Baquet told employees, explaining that the paper’s narrative “went from being a story about whether the Trump campaign had colluded with Russia and obstruction of justice to being a more head-on story about the president’s character.” The new story, he said, “requires deep investigation into people who peddle hatred.”
Mr. Baquet makes the Times sound like an advocacy organization working against Mr. Trump’s re-election. Such organizations are regulated by campaign-finance statutes. So are other corporations, for-profit or nonprofit, that engage in electioneering speech. But those laws exempt media organizations, provided they are not owned by a political party, committee or candidate.
The justification for this favored treatment is the media’s “unique” role in public discourse and debate. But that has changed—and not only because the media have become more partisan. “With the advent of the Internet and the decline of print and broadcast media,” the Supreme Court observed in Citizens United v. Federal Election Commission (2010), “the line between the media and others who wish to comment on political and social issues becomes far more blurred.”
Like the prerevolutionary French aristocracy, media institutions enjoy legal privileges whose rationale expired long ago. As a result, their exemption from campaign-finance law is vulnerable to constitutional challenge. “We have consistently rejected the proposition that the institutional press has any constitutional privilege beyond that of other speakers,” the Citizens United court declared.
The justices also indicated that a statutory privilege would be difficult to uphold. “The Government may commit a constitutional wrong when by law it identifies certain preferred speakers,” they wrote. “The First Amendment protects speech and speaker, and the ideas that flow from each.”
The court could resolve the problem by declaring the exemption unconstitutional and applying campaign-finance laws to media organizations. But that would make journalism untenable.
Consider the ban on “coordinated communications.” Under current law, corporations and other independent organizations have the right to speak for or against a candidate, but they are forbidden to develop messages “in cooperation, consultation or concert with, or at the request or suggestion of, a candidate, a candidate’s authorized committee, or their agents, or a political party committee or its agents.”
After the Times town-hall transcript was published last month, lawyer and author James Hasson noted that, in emails stolen from the Democratic National Committee in 2016, “major journalists were revealed to be explicitly coordinating with the [Hillary] Clinton campaign.” Among them was a Times writer who “told HRC aide Jennifer Palmieri she could ‘veto whatever [she] didn’t want,’ ” then “cut parts she objected to” from a story about Mrs. Clinton. A Politico reporter sent the DNC an entire story before publication.
News executives would argue that it is their role, not the government’s, to police such ethical transgressions. They’d be right. But the rule against coordinated communication would prohibit a vast amount of ordinary journalistic behavior, too—from interviewing candidates and campaign staffers to editing and publishing opinion articles under their bylines.
Moreover, any justification for that rule—such as the fear of promoting corruption—is equally applicable to media and nonmedia speakers, and becomes very weak when pure speech, such as news and commentary, is the issue.
The justices could protect everyone’s right to speak and gather news by declaring the coordination rule unconstitutional as applied against anyone, as they invalidated the rule against independent corporate campaign expenditures in Citizens United. Most newspapers—The Wall Street Journal is a notable exception—editorialized in bitter opposition to that ruling. They may end up grateful they didn’t get what they wished for.
Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush.