FEC regulations state: "The provision of any goods or services without charge or at a charge that is less than the usual and normal charge for such goods or services is a contribution." Individuals are limited to contributing $5,000 in a calendar year; corporations such as the Times are forbidden to make any contributions.
MoveOn.org is going to send a check to the Times for $77,000. The Times has apologized, which is sweet, but normally the FEC does not accept apologies in lieu of fines. And often FEC fines are levied after intrusive investigations into motives and intentions. Will there be such an investigation of the Times? The FEC is not lenient when dealing with individuals who, less lawyered-up than The New York Times Company, fall afoul of regulations much more recondite than the bright line the Times ignored.
Bob Bauer, a Democratic lawyer specializing in laws regulating political speech, notes -- notapprovingly -- that the Times supposedly has a policy of rejecting ads involving "personal attack" speech. But the Times accepted MoveOn.org's ad accusing a soldier of betraying his country. According to the Times' public editor, a Times official said the ad was "a comment on a public official's management of his office."
The Times' publisher, Arthur Sulzberger Jr., defending the decision to run the ad, said: "If we're going to err, it's better to err on the side of more political dialogue. ... Perhaps we did err in this case. If we did, we erred with the intent of giving greater voice to the people." Bauer notes that Sulzberger might have used words from a Supreme Court decision: "In a debatable case, the tie is resolved in favor of protecting speech." And: "Where the First Amendment is implicated, the tie goes to the speaker, not the censor." So spoke Chief Justice John Roberts in the Wisconsin decision that Sulzberger's paper denounced because it would magnify the voices of, among other things, "wealthy corporations." The Times Company's 2006 revenues were $3.3 billion.
The Times' performance in this matter confirms an axiom: There can be unseemly exposure of mind as well as of body.