Free Speech Victory: Washington Supreme Court rules speech is not money and cannot be regulated

June 1, 2007

In April, the Institute for Justice halted one of the most egregious attacks on free speech in recent years. The Washington Supreme Court unanimously ruled that on-air commentary by radio talk show hosts supporting an initiative campaign did not constitute an “in-kind” contribution to that campaign. A lower court had held that such speech was subject to government-imposed regulation and restriction—the first time a court or commission anywhere in the United States had held that media commentary in support of a campaign could be regulated under campaign finance laws. It was essential that such a precedent be overturned.

The case began in 2005, when the Washington Legislature passed a significant gas tax increase. KVI radio hosts Kirby Wilbur and John Carlson were vocal opponents of the tax and devoted substantial portions of their programs to supporting the I-912 initiative campaign (formerly No New Gas Tax) that sought to roll back the increase. They encouraged their listeners to sign the petition so the initiative could qualify for the ballot, to contribute money to the campaign, and to circulate petitions.

This exercise of free speech was too much for some tax-hungry municipalities that stood to gain millions if the gas tax were implemented. Using the services of a private law firm that acts as state bond counsel (meaning the firm is paid based on the issuance of bonds supported by the gas tax) and that contributed substantially to I-912’s opposition, San Juan County and the cities of Seattle, Auburn and Kent sued the I-912 campaign. The municipalities argued that had violated Washington’s campaign finance laws by failing to report Wilbur and Carlson’s on-air commentary as an “in-kind” contribution from the radio station.

This was not just a question of reporting. Washington law makes it illegal for any campaign to accept more than $5,000 from any one source in the final three weeks before the general election. Because the municipalities estimated the value of the hosts’ commentary as being worth $140 per minute, Wilbur and Carlson would have been barred from discussing the I-912 initiative during those three weeks. In a further assault on the First Amendment, the municipalities also subpoenaed the internal documents of the campaign and the radio station.

The municipalities sought an injunction preventing the campaign from accepting these “in-kind” contributions until it reported them to the government. Incredibly, the trial court judge granted the injunction. This took campaign finance laws in a dangerous new direction—speech was now money. And because speech was money, it could be regulated and restricted like money.
Having gotten their way, the municipalities relaxed, expecting this to be a very brief case because they believed that would not have the resources to challenge their crass political bullying while still conducting an initiative campaign. What they did not count on, however, was the Institute for Justice Washington Chapter.

After the court issued the preliminary injunction, IJ-WA took up the case for Yes912 and fought back against the municipalities and their phalanx of attorneys. IJ-WA filed a constitutional challenge and sought extensive discovery regarding the prosecutors’ abusive actions and introduction of a politically and financially interested law firm into a government prosecution. The municipalities moved to dismiss the constitutional claims and the trial court granted this request.

Undeterred, IJ-WA sought direct review before the Washington Supreme Court. In an unusual move, the court granted review, bypassing the state court of appeals. We received significant amicus support from organizations across the political spectrum including the ACLU of Washington, the Building Industry Association of Washington, the Washington Association of Broadcasters, the Cato Institute and the Center for Competitive Politics. In June 2006, we argued the case before the state supreme court

The Washington Supreme Court ruled that Wilbur and Carlson’s commentary fell squarely within Washington’s “media exemption,” which exempts from campaign finance laws “a news item, feature, commentary, or editorial in a regularly scheduled news medium.” Because Wilbur and Carlson’s commentary could not, under the law, be a contribution, the court held that the preliminary injunction was wrongfully issued and reinstated our claims. The court remanded the case so we can proceed with our effort to help fully vindicate the First Amendment rights to free speech and association—even after the initiative lost at the polls—for all Washingtonians. In a stinging concurrence, Justice Jim Johnson described the abusive nature of the prosecution and concluded, “This litigation was actually for the purpose of restricting or silencing political opponents.”

IJ-WA now returns to the trial court, where we will expose the abuses of government censorship and this politically motivated prosecution. Through this case, IJ-WA will clearly demonstrate how campaign finance laws, which already severely restrict speech, can be abused when the government places responsibility for prosecuting violations in the hands of interested parties. With the Washington Supreme Court victory in hand, we intend to make this an important step toward restoring the ability of all Americans to communicate political ideas to one another without government censorship.

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Free Speech Victory: Washington Supreme Court rules speech is not money and cannot be regulated

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