Is Dissent 'Legitimate'? Not According to Campaign Finance Laws

Fox News’ ratings have been off the charts lately, and it has the White House to thank for that. After the administration decreed that Fox is not a “legitimate news organization” and that people shouldn’t watch it, more people than ever are tuning in to see Glenn Beck and Bill O’Reilly fight back.

But we shouldn’t be so entertained by this spectacle that we lose sight of why, at bottom, it is a disturbing one. It’s not just because, as many commentators have already observed, the president appears to be taking a page out of Nixon’s playbook. Fundamentally, it’s because the administration’s media war against Fox is but a minor display of the tremendous power the government has to stifle speech it views as illegitimate.

Much of this power is the result of long-standing “campaign finance” laws. These laws impose all sorts of restrictions on political speech, and it’s no coincidence that the most draconian of these restrictions are targeted at those who can speak the most effectively against a politician's reelection. The most effective speakers tend to be those who can spend the most money. Corporations, many of which have lots of money, receive particularly harsh treatment under the law. Congress and state legislatures have as a practical matter banned corporations from speaking effectively about candidates by prohibiting them from spending any money for that purpose during election season.

Fox News is part of a corporation, as are most of the other major news outlets in the United States. Congress and state legislators have chosen to exempt them from the ban they have placed on other corporations’ political speech. However, under current Supreme Court precedent there’s no legal reason that lawmakers cannot take that exemption away. As a result, government officials are constantly tempted to manipulate the exemption and silence those who disagree with them.

With the Obama administration now arguing that Fox News is a partisan political group masked as a news outlet, expect politicians to call for the government to revoke the network's media exemption and use the campaign finance laws to mute its speech. Other networks will be on notice that they could suffer the same fate if they are too critical of the administration.

Of course, if the media’s speech becomes illegitimate -- and thus subject to restriction -- when it turns critical, then the same is true for everyone else, including ordinary citizens. For example, take grassroots groups such as the tea party protesters, who were the bane of politicians’ existence this past summer. Looking for payback, politicians are now proposing to subject those groups to so-called “disclosure” laws that will discourage them from protesting by wrapping them up in miles and miles of red tape if they dare to continue to speak out.