The Financial Times is reporting that media executives have approached Sen. John Kerry, who chairs a Senate committee with jurisdiction over these matters, about emergency legislation to exempt their publications and broadcasters from antitrust laws. If this exemption were enacted, it would permit price fixing and multiple ownerships of publications and networks that are now not permitted. It would also mimic what the French government is doing to save its newspaper industry.
The government has never in our history bailed out newspapers. So, no one yet knows what kind of strings it will attach to any bailout; or even what form the bailout will take. It could be loans, it could be stock acquisitions, or it could be relief from antitrust regulations. There is, however, a principle of constitutional law called the Doctrine Against Unconstitutional Conditions (the “Doctrine”). It means that the government cannot condition the acceptance of a governmental benefit on the non-assertion of a fundamental liberty. Simply stated, the Doctrine, which the Supreme Court has enforced consistently, states that the government cannot pay you money or relieve you from complying with a law in return for your agreement not to exercise your First Amendment rights.
Notwithstanding the Doctrine, the feds have not hesitated to interfere with binding contracts, to intimidate businesses into selling stock that they would rather not sell, and to bully litigants in federal litigation into changing their positions on issues in the case; fundamental liberties all. So don’t look for this government to be bound by some arcane principle of constitutional law. This administration, just like its predecessor, is a law unto itself.