January 1, 1900

by Mark A. Roney

The New Jersey Election Law Enforcement Commission (E.L.E.C.) is vested with broad investigatory powers to ensure that the state’s financial disclosure and campaign finance laws are followed. Typically, newspapers in New Jersey with large circulation and daily readership have no problems with protecting their sources or staff from intrusive state agencies. But what happens when the power of E.L.E.C. runs headfirst into the free speech protections afforded newspapers which do not have the same circulation base or publish on a more infrequent basis? The answer is not as clear as one may think.

What Type of Statement Will Trigger E.L.E.C.’s Investigatory Powers?

If a statement is made which involves a direct appeal for the election or defeat of a public question or candidate for political office, whether via e-mail, advertisement, broadcast over the radio or television, the statement will be deemed a "political communication contribution" and trigger the jurisdiction of E.L.E.C.’s reporting and investigatory powers. While E.L.E.C.’s jurisdiction in this type of direct appeal to the voting population does not conjure images of a government agency stifling free speech, E.L.E.C. has a much broader ability to investigate "political communication contributions" which can easily infringe on a newspaper’s ability to publish articles concerning political figures.

E.L.E.C. regulations define a statement as being a "political communication contribution" triggering reporting responsibilities if the statement is: (1) made within 90 days of the date of any election in which the candidate on whose behalf the communication was made, or in the case of a candidate for Governor in a primary year, on or after January 1st of the primary year; (2) the statement is circulated or broadcast to an audience substantially comprised of persons eligible to vote for the candidate; (3) the communication contains a statement or reference concerning the governmental or political objectives or achievements of the candidate; and, (4) the production, circulation or broadcast of the communication is made in whole or in part with the cooperation of, prior consent of, in consultation with, or at the request or suggestion of, the candidate.

Therefore, any time a newspaper publishes an article or opinion piece on a candidate for governor in an election year, they are potentially exposing their operations to the prying eyes of E.L.E.C. During election years, newspapers are a major vehicle utilized by candidates to obtain name recognition and to inform the general public of their positions on the issues. The mere act of disseminating useful information about candidates to the general public should not expose a newspaper to potential investigations by E.L.E.C of their professional and financial activities.

Are There Limits to E.L.E.C.’s Ability to Investigate Newspapers?

While the burden of requiring compliance with E.L.E.C. regulations in the case of a candidate may make sense, requiring individuals or newspapers to comply with E.L.E.C. investigations has the potential to violate a newspaper’s right to keep confidential sources of profession and financial information. However, E.L.E.C. does not have entirely arbitrary regulations regarding the free speech rights of newspapers. A newspaper may be exempt from the reporting requirements of E.L.E.C. if the newspaper can prove that it is a bona fide newspaper. The problem is that E.L.E.C. regulations do not provide any guidance on what constitutes a bona fide newspaper.

Without providing a definition of a newspaper, one must look to other situations where newspapers are protected from divulging sources or producing financial information. The most analogous scenario in which state statutes or regulations are balanced against the press’ right to free speech and its corollary protections is the application of the "Newsperson’s Privilege." The "Newsperson’s Privilege" protects newspersons from disclosing information that they have received in the course of pursuing professional activities. If the privilege is asserted correctly, the newsperson has no duty to testify or produce documents either to a grand jury or in a court of law. The statute creating the privilege defines a newspaper as "a paper that is printed and distributed ordinarily not less than frequently than once a week and that contains news, articles of opinion, editorials, features, advertising, or other matter regarded as of current interest, has a paid circulation and has been entered at a United States post office as second class matter." Unfortunately, the definition of a newspaper does not protect fledgling papers or newspapers that are printed on a monthly, rather than weekly or more frequent, basis or free publications.

The mere fact that a newspaper is in its nascent stages should not remove the newspaper’s privilege to protect its sources and to create and publish a product that is free from the overzealous scrutiny of a regulatory agency investigating alleged violations of its regulations. Moreover, a newspaper should not have to be afraid to approach or print an article with the consent or cooperation of a candidate for political office because the printing of an article could trigger the subpoena power of E.L.E.C.

Courts in New Jersey have broadly construed the protections afforded newspapers in connection with the "Newsperson’s Privilege." However, no court has yet to make a determination regarding E.L.E.C.’s power to investigate the financial and professional activities of newspapers. It would be unfortunate indeed if small or emergent newspapers find themselves in the position of thinking twice about taking a stance on political issues or the endorsement of individual candidates for fear of receiving a letter from E.L.E.C. "requesting" information regarding the publication of certain articles.

Mark A. Roney is an associate of Hill Wallack and member of the Administrative Law/Government Procurement Practice Group. His principal area of practice is in the areas of economic and business development with a particular emphasis on municipal law and government affairs.