The National Rifle Association has pushed us a step farther down the slippery slope established by the Bipartisan Campaign Reform Act. That law established an implicit multi-tier system of free speech, with media outlets permitted to engage in political speech that is now illegal for other groups. The NRA has done the obvious thing in response: turned itself into a media outlet. Others are expected to follow suit.

These organizations are precisely the “special interest” groups the BCRA was intended to muzzle. This obvious attempt to circumvent the intent of the law places defenders of campaign finance reform in an awkward position. If the circumvention succeeds it will rip out a key pillar of their reform effort. (Which is looking pretty rickety already what with the 527s replacing the now-banned soft-money donations and both major Presidential candidates rejecting federal matching funds while blowing past all prior fund-raising records.) Blocking it leads down the path towards government licensing identifying the ‘legitimate’ press.

This prospect is scary because the distinction between a legitimate and bogus press outlet is murky at best. Some liberals don’t seem to consider FoxNews legitimate media, for example. The same is doubtless true of conservative opinion regarding the Air America talk radio network (or CNN in some circles). The expression of strong opinions should not be a liability; there’s no rule requiring that media be bland or inoffensive.

A narrow focus doesn’t disqualify; nobody would deny that Cat Fancy magazine is a media outlet. For that matter, how broad would the subject matter of a show have to be before it was broad enough? If the NRA gets together with strict sentencing anti-crime groups and produces a show pushing both viewpoints together, is that somehow more ‘real media’ than a show covering only gun-related news? If Earth First!, the NAACP, the NEA, the NOW, NARAL, the LGBA, the AFL-CIO, PETA and ANSWER all get together — well, they’d have CBS and the Democratic Party, so I guess that point is moot.

The fact that the NRA (or future emulators) are trying to ‘work around’ the law should not be taken as automatically delegitimizing their media efforts. The law as written deprives them of the means they once used to express their views. If we declare any attempt by them to express those views within the scope of the law as wrong, we should be honest and just admit that we’re using the law as a club to whack people we don’t like.

Of course, that’s the most likely outcome. Given the impossibility of crafting a ‘bright line’ principle to divide real media from fake media, we will be thrown into case-by-case analysis. The assessments will be influenced by the popularity of the viewpoints expressed by the new media outlets under consideration. Once the rule of law, in the form of the First Amendment, has been abandoned we will be left with the rule of men.

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