I'm not sure I quite understand the distinction here.  Austin did refer
to "the unique role that the press plays in 'informing and educating the
public, offering criticism, and providing a forum for discussion and
debate.'"  But a newspaper that's "a mouthpiece for the candidate" seems to
be quite capable of informing and educating the public (albeit in a way that
supports the candidate), offering criticism (of the candidate's opponents,
or, for instance, of the established political system that an "outsider"
candidate is running against), and providing a forum for discussion and
debate.  It's true that it's less likely to be objective in this.  But I had
not thought that the freedom of the press applied only to "objective" or
"even-handed" media.
 
     Incidentally, let me bring up a point that I mentioned tangentially in
an earlier message:  Often, a magazine or a newspaper may support candidates
who are friends of the owners, and not the owners themselves.  Wouldn't the
rationale below apply equally to such publications, which would still be
"mouthpiece[s] for the candidate"?  Isn't that likely to be the next target
after the speed by candidate-owned newspapers are restricted?  (After all,
the inequality arguments and the "corrosive effect" arguments would be just
as strong here as for the candidate-owned publication -- and the quid pro
quo arguments would be even strongers, since we worry about a candidate's
friends having a corrupt influence over the candidate more than we'd worry
about the candidate having a corrupt influence over himself.)
 
     Eugene
 
Rick Hasen writes:
 
Perhaps a way to distinguish the two National Review hypotheticals could be
created out of that part of Austin which recognizes the "unique role" of the
institutional press in helping the public to understand political issues and
campaigns.  When the candidate owns the newspaper, the newspaper is less
likely to play this unique role and more likely to be a mouthpiece for the
candidate.  Thus, under this reasoning it would be constitutional for a
legislative body to carve out an exception for the institutional  press, but
create an exception to the exception for press owned by candidates.  (In my
Rupert Murdoch piece, I have questioned whether the press indeed plays this
"unique role," but that's a different question from whether, given Austin's
precedent, someone could make out such an argument.)

The hypothetical is not entirely fanciful.  If I recall correctly, Steve
Forbes was at least investigated by the FEC for certain things written in
Forbes magazine which was under his control while he was a presidential
candidate.  The federal media exception specifically does not apply to news
outlets owned or controlled by a candidate.

Now Frank's question appears a bit different, because the New Jesey law does
not have an explicit media exception the way federal law does.  I think
Austin was pretty clear that while the media exception is permissible, it is
not constitutionally required.  (Indeed, I recall that Justice Scalia
pointed to this very fact in saying that the media should dislike the
majority opinion in Austin.)  So that leaves the coordination question.
Although Eugene is right that the danger of quid pro quo corruption doesn't
exist in this case, I could imagine someone successfully arguing that the
Supreme Court's contribution limit and corporation contribution cases are so
broad that they can be read as to not require an individualized
determination as to the possibility of quid pro quo corruption whenever
anyone makes an excessive coordinated contribution.  Thus, a state may
sanction someone, including the owner of a newspaper, for making excessive
coordinated contributions with the newspaper corporation.

Rick