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September 8, 2017

Phoenix—In America, free speech increasingly is not free. That’s particularly true as states pass laws to limit the ability of nonprofit organizations to advocate for issues Americans care about. Nonprofits are being made to disclose their donors’ names, addresses, and private information to the government if they speak out on public policy, and big media has gotten on board, saying that donor disclosure is necessary to ensure that major corporations are not using their checkbooks to influence government.

But traditional media organizations, often large and politically influential corporations, are exempt from most campaign finance restrictions, including disclosure laws.

Jon Riches, director of national litigation for the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation, examines this treatment disparity in his new policy paper, An Informed Citizenry: Broadening the ‘Media Exemption’ to Include Nonprofit Communications.

Federal and state campaign finance laws treat the communications of media and nonprofits very differently when each communicates on important public policy issues. For instance, in Massachusetts, all entities not defined as a political committee who make “electioneering communication expenditures” over $250 must report it to the Director of Campaign and Political Finance. However, news stories and opinion appearing on television, on the radio, or printed in a periodical are exempt from these requirements. In short, it is permissible for the traditional media to speak freely on matters of public concern, including endorsing elected candidates for office, but nonprofits do not have the same liberties.

“It’s a speech double standard. Both media and nonprofits provide information about important public issues and make it possible for citizens to join together to advocate for political and social change, but they’re not afforded the same free speech rights,” Riches said. “Media are broadly exempt from disclosure requirements and other federal and state-based campaign finance laws. This disparity should not exist in a country that protects free speech.”

In An Informed Citizenry, Riches explains that since the definition of what constitutes media is evolving, the laws that exempt traditional media from disclosure requirements should be updated to broadly protect all communications. “New technologies are changing the way information is collected and disseminated, and so the media exemption for disclosure must change as well,” Riches said. “There is no principled reason to allow large, influential corporations to receive special treatment that other corporations do not receive. Rather, the law should treat all speakers equally—media and nonprofit organizations alike.”



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