A Serious Discussion of Whether the People Running Stephen Colbert’s Network Have Any First Amendment Rights By Patterico

Rick Hasen has a post on whether the people running Stephen Colbert’s network would violate the law by letting him “run for President” while also putting him on TV. The post is titled Does Viacom Get the Media Exemption for Stephen Colbert’s Promotion of His Candidacy on the Colbert Report?

In other words, does our government allow Stephen Colbert’s bosses to engage in free speech?

Hasen concludes:

I’m leaning towards no, but the issue is not a slam dunk.

What follows is a very sober discussion — you can almost visualize Hasen furrowing his brow as he taps out the post — of whether someone can exercise his core First Amendment rights without running afoul of the blatantly unconstitutional obstacles that Our Caring Government has put in our way. (Oh, sure: it’s about corporate free speech rights — and this has nothing to do with individuals, because corporations are run by giraffes.)

Savor this passage:

The fact that the show is a satire makes the interpretation question all the more difficult: does schtick count as commentary? I’m not so sure. But consider a case where Jay Leno does his comedy routine wearing a “Vote for Colbert” button. I don’t think that would get the media exemption, and NBC could be in trouble. It is quite a fine line to draw.

Indeed. Why, just imagine the trouble Jay Leno’s bosses would be in with Our Caring Government if he wore a button advocating the candidacy of an actual serious candidate for president.

Why, Our Caring Government would not be very pleased with that.

Back to Hasen:

Given the dearth of caselaw and useful FEC commentary on this question, we might well ask two questions to figure out how this case should come out. First, what is the purpose that the ban on funding from corporate treasury funds is meant to further? Second, given that purpose (or purposes), what is the justification for the media exemption.

Ooh, ooh, call on me! Because I have a third question.

Did someone repeal the First Amendment when I wasn’t looking?

This content was used with the permission of Patterico’s Pontifications.

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