Campaigning as the Press: Citizens United and the Problems of Press Exemptions in Law

Abstract

Was the documentary film Hillary: The Movie a piece of advocacy journalism or long-form political campaign advertisement? If it is the former, First Amendment jurisprudence largely prohibits the government from placing restrictions on its content or availability. If it is the latter, the United States Congress has long argued that important government interests allow for prior restraints and a myriad of content requirements, such as disclosure and disclaimer rules. This article examines whether the “media exemption” in campaign finance laws can be narrowed or expanded in particular ways that do not violate free press principles but that support the government interests in regulating money in politics. In assessing the definitional problems inherent in the application of the media exemption, this research assesses whether journalist’s privilege law might provide a framework for resolving media-exemption problems in campaign-finance law. The research concludes that these privilege tests provide some guidance in evaluating what should qualify for the press exemption, especially now that the media exemption will only determine whether disclosure and disclaimer rules apply to speakers.

Keywords: campaign finance, media exemption, First Amendment, Citizens United