June 2006

By William R. Maurer

The week of June 5, 2006, is a crucial week for the health of free speech in Washington state and the entire nation. That week, two teams of Institute for Justice attorneys will be in appellate courts in Washington state—one in the 9th U.S. Circuit Court of Appeals and one in the Washington Supreme Court—defending the radical notion that the Constitution protects all speech, regardless of whether the government likes the topic.

On June 6, IJ Senior Attorney Steve Simpson will be joined by Institute for Justice Washington Chapter (IJ-WA) staff attorney Jeanette Petersen in the 9th Circuit to argue that the court should affirm the U.S. District Court’s decision in Ballen v. City of Redmond. In June 2004, the Honorable Marsha J. Pechman of the U.S. District Court for the Western District of Washington, held that the City of Redmond’s ban on portable signs containing certain commercial messages, such as those about bagels, while permitting other commercial signs, is unconstitutional. The judge cleared the way for IJ-WA client Blazing Bagels to communicate truthful information to potential customers regarding the fact that the shop is open and bagels are for sale. The judge explained, “The different treatment under the ordinance is entirely based on a sign’s content. There is no rational reason for such a distinction; there is no relationship between the content-based distinction and the safety and aesthetic goals. Rather than a reasonable fit, here there is an irrational fit.” Redmond appealed the ruling, and the 9th Circuit in Seattle is now poised to hear arguments as to whether the government may constitutionally pick and choose which businesses may advertise in Redmond.

The City of Redmond has limited IJ client Dennis Ballen’s right of free speech.

Two days later, on June 8, IJ-WA staff attorney Michael Bindas and I will be at the Washington Supreme Court arguing the case of San Juan County v. No New Gas Tax (now Yes912.com). This case underscores how so-called campaign finance laws at the state level are being used to stifle political debate. Last July, a Washington trial court ordered the Yes912.com committee (the campaign sponsoring an initiative to repeal a hefty gas tax increase) to report favorable discussions about the initiative on two talk radio shows as “in-kind contributions” subject to regulation under Washington’s campaign finance laws. The supposed “in-kind contributions” were the hosts’ on-air discussions of the initiative—that is, pure political speech in the media on an issue of importance to all Washingtonians. According to the municipalities, all of whom stood to gain millions in revenue from the tax, such discussions were not free speech, but rather were financial contributions to the campaign. And because contributions are limited to $5,000, in the last three weeks of the election, the talk show hosts were supposed to stop talking about the initiative. Because of the threat this decision posed to the unfettered exchange of ideas, the Institute for Justice Washington Chapter appealed the decision directly to the Washington Supreme Court. Under Washington law, the Supreme Court may directly review a trial court’s decision if the case involves “a fundamental and urgent issue of broad public import which requires prompt and ultimate determination.” In April, the Supreme Court accepted direct review.

“Although the subjects of speech in these two cases—bagels and politics—are different, both cases are really about the same thing: whether the government can choose which messages you hear.”

Whether the government’s motivation is disdain for speech about commercial activities, as in Ballen, or the crass political bullying of a campaign the government does not like, as in San Juan, both cases present the issue of whether the government can ban, harass or oppress speakers simply because it does not like the message they convey.

Since its beginning, the Institute for Justice has fought for the right of Americans to express their opinions about whatever topic they want, be it bagels or taxes. Under the Constitution, the government has no role in choosing which topics are acceptable and which are not. For one week in June, whether Americans still have the right to speak freely on all subjects will be the topic of conversation in Washington courtrooms.William R. Maurer is executive director of the Institute for Justice Washington Chapter.