ABA Journal: Catch and Kill: Can tabloids hide behind the First Amendment?

One Sunday morning in February of last year, Paul S. Ryan, an attorney at Common Cause, a grassroots organization that works to uphold democratic principles, got up early, as he regularly does, and read through the latest news. When he came to a story in the New York Times he had been following, he drank some coffee, ate breakfast with his wife and young son, and went to work.

Ryan, who is Common Cause’s vice president of policy and litigation, does not regularly work on weekends. But the Times story had new details in an evolving scandal in which the company that owns the National Enquirer had paid $150,000 to former Playboy model Karen McDougal to buy the rights to a story about her affair with Donald Trump before he became president. The company, American Media Inc., never had any intention of running the story. Instead, at the direction of David Pecker, AMI’s chairman, president and CEO—and a longtime friend of Trump’s—the company wanted to make sure no one else could run the story. Buying a story specifically to suppress it is known in the tabloid world as “catch and kill.”

Ryan had been keeping up with news about the deal, which took place in August 2016 and was first revealed by the Wall Street Journal in the days before the presidential election. In particular, he wondered if the payment might eventually be traced back to the Trump campaign. That Sunday, Feb. 18, 2018, journalists at the New York Times did exactly that, reporting in a story headlined “Tools of Trump’s Fixer: Payouts, Intimidation and the Tabloids,” that Trump’s lawyer—Michael Cohen—had been involved in the National Enquirer’s transaction with McDougal. If that were true, Ryan thought the payment likely violated the Federal Election Campaign Act, which prohibits corporate contributions to candidates for federal office, including “in-kind” contributions made on behalf of, or “in consultation, cooperation, or concert with” someone. The act also requires that any contributions be reported to the Federal Election Commission.

“Voters have a right to know who is spending money to influence their vote on Election Day,” Ryan says. “Here we had a $150,000 payment to influence voters by keeping away from voters information voters would undoubtedly find interesting within two months of a presidential general election in coordination with a presidential candidate.”

Ryan stayed at his Washington, D.C., office for several hours that Sunday drafting complaints against AMI, Trump and the Trump campaign for the Department of Justice and the FEC. He continued to work on the complaints the next day, even though his offices—and the federal government’s—were closed for Presidents Day.

That Monday, he ran the drafts by his boss, Common Cause President Karen Hobert Flynn, and a colleague who had previously worked at the FEC. Then, as is required for any litigation initiated by Common Cause, he sought approval from the litigation committee of the organization’s national board. He sent an email requesting approval at 11:57 a.m. At 11:59 a.m., he got his first yes. Four others came in by 1:36 p.m. The last committee member asked a few clarifying questions, and after receiving Ryan’s answers gave the greenlight at 4:14 p.m.

“The only time we do a phone call is if there’s some disagreement,” Ryan explains. “But here, there was none. I just got a bunch of quick approval emails.”

The next day, Feb. 20, Common Cause filed the complaints. The organization has several other cases on its docket, but the AMI/McDougal cases have captivated the nation’s attention, not only because of the parties involved—a president and a Playboy playmate—but because of the historic clash between two of the most basic principles of democracy: a free press and fair elections. …

While the Bezos case could affect Pecker’s plea deal with prosecutors, if investigators determine extortion, the McDougal case implicates a host of other legal considerations—campaign finance laws in particular.

“This was all about keeping McDougal quiet in the context of the election,” says Common Cause’s Ryan. “That’s what made this an obvious campaign finance law violation to me.”

One possible defense to any charge of campaign finance violations in the AMI/McDougal deal would come from the Federal Election Campaign Act’s distinction between campaign expenses and “personal use” expenses. (Edwards went with the personal use defense when he was unsuccessfully prosecuted for alleged in-kind contributions made to the woman with whom he had an affair.) Cohen and AMI both have admitted the McDougal payment’s “principal purpose” was to prevent McDougal’s story from influencing the election.

FECA also includes a built-in carve-out for the media so that the press can report on political stories or candidates and publish opinion pieces or editorials without fear of running afoul of prosecutors. The law exempts “any cost incurred in covering or carrying a news story, commentary, or editorial” unless the entity in question is owned by a political party, committee or candidate.

Ryan attempts to pre-empt AMI’s potential use of this exemption in his complaints to the DOJ and FEC, writing that “there is reason to believe” that the media company’s payment to McDougal “was not for the distribution of any ‘news story, commentary, or editorial,’ was not for any ‘legitimate press function,’ and therefore was not covered by the so-called ‘press exemption’ to the definition of ‘expenditure.’ ”

“Particularly on these facts, the catch-and-kill payment was not a payment by a media company to cover or distribute a news story,” he says. “It was a payment for the opposite purpose: to kill a news story.”