Where's the media when it comes to defending Forbes' freedom of speech?

September 13, 1998|By George F. Will

WASHINGTON -- Even more scandalous than the political class' continuing assault on the First Amendment is the journalistic class' complicity in this assault. The threat, advanced under the antiseptic rubric of "campaign finance reform," is a speech-rationing system to solve the "problem" of "excessive" political giving and spending.

Such a system already exists, but reformers always want new laws to make the system more elaborate. And even without new laws, the Federal Election Commission is trying to punish some "offending" journalism. Consider the FEC's attempt to fine Steve Forbes $94,900 for the content of his magazine column.

Like his father and grandfather before him, Mr. Forbes writes a biweekly column for Forbes magazine, of which he is editor in chief. The column is primarily about public policy, although it also contains short book reviews, restaurant recommendations and other whimsy.

The FEC's speech police have decided to permit the whimsy. However, there are limits to their liberality. They have scoured the columns Mr. Forbes wrote while campaigning for the Republican presidential nomination in 1996 and have culled what they call "offending passages."

What passages offend the government? Passages on, say, Brazil pass muster, but those on Bosnia were, the speech police say, illegal. Why? Because Bosnia was, and Brazil was not, an issue in the 1996 campaign. Mr. Forbes' thoughts on Canada are fine because no one cares about Canada. However, thoughts on partial-birth abortion get Mr. Forbes fined.

FEC's long hand of the law

Sifting permissible from impermissible content, FEC bureaucrats -- your tax dollars at work-- have calculated the fine of $94,900. The FEC believes Forbes magazine made an impermissible corporate contribution of that size to Mr. Forbes' campaign. The FEC arrived at that sum by calculating what an advertiser would pay for the same space occupied by these passages in the magazine and in a small New Jersey newspaper that Mr. Forbes owns and that carries his column.

Mr. Forbes could pay the fine out of petty cash, but instead is going to court. The Supreme Court and numerous lower courts (( have told the FEC, as Mr. Forbes says, that "the threshold question for determining if any activity or disbursement is

subject to regulation by the FEC is whether that activity expressly advocates the election or defeat of a federal candidate."

The FEC admits there was no "express advocacy" in Forbes magazine on behalf of Mr. Forbes. However, for 20 years the FEC has unsuccessfully tried to turn American politics into a game of "Mother May I?" in which candidates must constantly traipse to the FEC to seek permission for contemplated campaign activities.

Douglas' opinion

Once upon a time, defenders of the First Amendment applauded when Justice William Douglas explained the indissoluble link between freedom of speech and freedom to give and spend money for the dissemination of speech: "It usually costs money to communicate an idea to a large audience. But no one would seriously contend that the expenditure of money to print a newspaper deprives the publisher of freedom of the press."

Nowadays the New York Times, Washington Post and other members of the media favor circumscribing everyone else's freedom of speech by circumscribing the freedom to give and spend on behalf of political expression. Why? Perhaps partly because such circumscription enlarges the importance of the media's unregulated political expression, relative to the expression permitted to people covered by speech-rationing laws.

But will the media remain immune to regulation? The FEC's ham-handedness regarding Mr. Forbes demonstrates how any speech rationing system will tend to become steadily more rococo.

Controls on "hard" money (given directly to particular candidates) are ineffective unless supplemented by controls on "soft money" (given to parties for "party-building" activities), and even those controls are vitiated unless express advocacy by private groups is controlled, but those controls are nullities unless control encompasses issue advocacy by private groups. And in time we come, as the Forbes case shows, to government attempts to excise "offending passages" from a magazine.

Where is the media outrage? This year is seeing the crackup of several causes, and the ruin of reputations. By their uncharacteristic and unprincipled quietude concerning the president's comportment, many feminists have devalued their past protestations and forfeited their place in the nation's political conversation. Similarly, much of the media are shredding their credentials as defenders of free speech.

With scant help from them, Sen. Mitch McConnell, a Kentucky Republican, and other congressional friends of the First Amendment last week defeated this year's speech-rationing legislation. But the First Amendment is weaker because of the silence of the media lambs who once were lions in its defense.

George F. Will is a syndicated columnist.

Pub Date: 9/13/98

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