Can Freedom of the Press Survive David Pecker?

The National Enquirer pushed the limits of journalistic norms—and in the process called into question the legal protections enjoyed by the media.

David Pecker

Updated at 7:27 p.m. ET on February 11, 2019.

American Media Inc. admitted to breaking campaign-finance laws when it coordinated closely with Donald Trump’s lawyer in paying for, then burying, a story about an alleged extramarital affair. Its problem was fundamental. It was not engaged in the performance of the journalistic function on which the press’s constitutional and legal protections depend.

Once AMI chose to subsidize a presidential candidacy, it was subject to the legal restrictions and requirements that apply to super PACs and political-action committees. Now the company faces more legal trouble after using the acquisition of personal materials to pressure a critic of its publishing activity, Jeff Bezos, into silence. In other words, it did not cover this story: It engaged in what looks like extortion to suppress it.

This is a case study of the legal exposure that can result from failure to observe core professional norms—and of the relationship of norm preservation to legal immunity. A severe lapse in the observance of norms can become a legal problem. As The Washington Post, owned by Bezos, editorialized, AMI should face the consequences of not engaging in “legitimate journalism” in threatening Bezos. And Bezos, in his Medium posting, put this same emphasis on AMI’s departure from standard journalistic practice. He wrote that “no real journalists ever propose anything like what is happening here”:

I will not report embarrassing information about you if you do X for me. And if you don’t do X quickly, I will report the embarrassing information.

By passing over from the pursuit of news to corporate bullying for self-interested purposes—or, in the campaign-finance case, coordinated political activity with a candidate—a media organization risks forfeiting the constitutional protections normally working in its favor. Adherence to professional norms constitutes the first line of legal defense, the backbone of the claim for privileged treatment based on First Amendment values.

Legal exemptions for news organizations often rest on explicit appeals to these norms. To escape the reach of the campaign-finance laws, a press entity has to be acting as a press entity, performing what the Federal Election Commission has characterized as a “legitimate press function.” The Foreign Agents Registration Act (FARA), which requires reporting of political or public-relations work on behalf of foreign nationals, carves out protections only for press entities’ “bona fide” news coverage.

It is unsettling to strong supporters of press freedom (and I consider myself one) to accept that, because of the absence of overriding constitutional immunities, a press entity can find itself a corporation like any other having to defend against campaign finance, extortion, FARA, or other charges. But AMI’s case shows that a media organization can assume too much.

AMI certainly assumed far too much about its latitude as a press entity to link arms with Michael Cohen in the defense of Donald Trump’s political interests. It was certainly forewarned. The Supreme Court majority in Citizens United went somewhat out of its way to deny that the Constitution singles out the press as a “preferred speaker” in the political process.

That AMI is a media publisher, within the broadest construction of the term, did not allow it to become an auxiliary of the Trump campaign and engage in activities far removed from those that merit the most intense constitutional press protections. David Pecker, the chairman and CEO of AMI, was entitled to his personal political interests and preferences; his chairmanship of the company and power to deploy its resources in the furtherance of his political goals did not transform his partisan purposes into a “freedom of the press” issue.

Whether a media organization can successfully claim the most robust legal protections has a great deal to do with its compliance with norms. In his opinion for the Court in Citizens United, Justice Anthony Kennedy noted the danger that other interests, unrelated to the news-gathering function, might drive a news company’s behavior. He pointed to the potential of a “conglomerate that owns both a media business and an unrelated business to influence or control the media in order to advance its own business interests.” Kennedy indicated that, in that case, the press organization would not be entitled to the ordinary constitutional presumptions: It would not have engaged in the “legitimate” or “bona fide” press activity that shields it from legal liability under statutes such as the federal campaign-finance laws or FARA. This is one of the reasons for Kennedy’s embrace of Justice Antonin Scalia’s position that the institutional press cannot claim constitutional privileges “beyond that of other speakers.”

AMI is now passing through another round of serious legal peril because it disregards the norms associated with legitimate, recognizable journalistic activity. Its editors and reporters did not spring into action in response to Bezos’s attacks. Its management did, relaying the threat to Bezos through lawyers. And it is not only on this front that AMI is testing the scope of its protections from legal liability as a “press organization.” Its publication of a glossy brochure favorable to the Kingdom of Saudi Arabia has raised the question of whether it was acting as a press organization informing the public or the illegally unregistered agent of a foreign government.*

In application, the question of whether a press organization is operating on accepted norms can become complicated. Bezos’s example of what no “real journalist” would do was right. But there is a variant that goes somewhat like this: I do not need to pursue this angle X on a story, which is peripheral to my main interest while embarrassing to you, if we can work together on Y, which I (our readers) really care about.

This play is not uncommon among journalists, especially those within the appropriately hard-charging and vital community of investigative reporters. While there is still a threat implicit in this statement, it typically does not present a legal problem if it advances a clear journalistic purpose. Press organizations make deals for news. Not all are savory: Among the examples is, once again, the National Enquirer, which agreed not to run certain stories about Bill Cosby in return for an on-the- record interview with him. Nor does, or should, every instance of questionable or unethical conduct by journalists invite open season on the press and the threat of legal consequences.

But the flagrant violation of norms can raise the question of a press organization’s true purpose. It separates the hardball investigative tactic, involved in pursuing a story, from the actionable act of extortion in trying to kill one.

As press entities increasingly line up on distinctive sides of the political spectrum, as reporters become commentators and public figures wait out their next stint in office as commentators, and as sources and reporters establish ongoing and mutually advantageous relationships, the issue of adherence to norms will grow in importance. In his recent book On Press, Matthew Pressman has written that the press is now “undergoing the greatest change in its ideals and practices … since the 1970s.” Norms of “objectivity” are under active debate and reevaluation.

The economics of the profession are relevant here, of course. Declining resources for reporting translate into more dependence on sources and closer relationships with them, and those relationships can be built on shared interests in a highly polarized political environment. This is especially significant at a time when, as Pressman points out, traditional news organizations are increasingly appealing to particular readerships characterized by distinctive political, ideological, and cultural commitments.

AMI is not the future: It does not set the pace for the news industry, and we can be thankful for that. But its flouting of professional standards in the Cohen case and the issues now raised by its extortionate behavior toward Bezos illustrate the indispensability of norms in the constitutional defense of the news industry. The norms are not merely aspirational, and they are not only “ethical” in character. With the collapse of norms comes the increased risk of the letter from a lawyer and the prosecutor’s knock on the door.

AMI has now indicated that its board will take up the Bezos matter, but it has stated, too, that it “believes fervently that it acted lawfully in the reporting of the story of Mr. Bezos.” The board was right to believe that whether it acted lawfully depends on whether it was “reporting” in the Bezos matter. That determination is inevitably tied to the evidence that it was, or was not, heeding the norms of the profession. Its battle to win this argument seems very likely to be uphill.

* This article originally stated that AMI distributed its publication about Saudi Arabia without charge. In fact, the publication retailed for $13.99. We regret the error.