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.