On the Constitutionality of a Newspaper Bailout

by: Jeff Bercovici

Does the First Amendment somehow prevent the federal government from undertaking a bailout of the newspaper industry? Andy Rosenthal seems to think so. Exactly why, I'm not sure.

A New York Times reader asked the paper's opinion czar about a "rumor" that the government might offer newspapers a bailout on the condition that they do away with their editorial pages. Rosenthal's response:

There's been talk about the newspaper industry, of course, as the recession has deepened and newspapers have closed around the country. And some people have suggested that newspapers seek an exception to federal antitrust rules so they can start charging for their Web sites as a group, instead of one by one.

But it's hard to imagine how Congress could pass any law giving money to the nation's newspapers, since that would clearly violate the First Amendment, and it's just as hard to imagine a newspaper's taking money directly from the federal government.

How's that, again? Depending on how it was structured, a bailout could plausibly run into First Amendment problems, but "clearly"? Here's the actual wording of the amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

I'm not sure how merely dumping a bunch of money into newspapers, the way France did earlier this year, could be construed as "abridging the freedom of speech." If it were unconstitutional for the government to lend financial support to media outlets in any form, PBS and NPR wouldn't be able to accept taxpayer support via the Corporation for Public Broadcasting. Some have even argued that a bailout is needed to prevent the de facto abridgment of free speech that a wholesale collapse of newspapers would represent.

It is true that the Newspaper Revitalization Act recently proposed by Sen. Benjamin Cardin of Maryland would require newspapers to stop making endorsements in exchange for the right to restructure as nonprofits and enjoy the attendant tax breaks. That scenario -- which seems to be what Rosenthal's questioner has in mind, vaguely -- would almost certainly encounter a First Amendment challenge at some point. But if Congress simply wants to lavish no-strings-attached cash on newspaper companies, I don't see how the Bill of Rights poses an obstacle. Now, common sense...that's another story.