Warning to the Media:

John Kramer
John Kramer · October 26, 2005

Seattle—The free speech and free associational rights of media personalities, campaigns and indeed, all Washingtonians, were dealt a stunning blow today.

In a decision handed down today, a Thurston County Superior Court judge held that editorial comment on the radio regarding issues of public importance can be treated as reportable campaign contributions and therefore subject to regulation under Washington State’s campaign finance law.  It marks the first time at either the state or federal level that a court has treated on-air editorial discussions and commentary as subject to regulation under campaign finance laws.  Moreover, it represents a dangerous precedent that will allow politically motivated governments to use the campaign finance laws to intimidate and perhaps silence voices in the media with which they disagree.

William Maurer, executive director of the Institute for Justice Washington Chapter (IJ-WA), said, “We will immediately file an appeal directly to the Washington Supreme Court.  This decision was wrong on the facts and wrong on the law.  It must be overturned on appeal so that Washingtonians may freely access and discuss all political issues, even the ones the government does not want people to hear or talk about. ”

In the case of San Juan County v. No New Gas Tax, local prosecutors from the cities of Auburn, Kent and Seattle, and San Juan County filed a lawsuit seeking to derail Initiative 912, which would roll back a massive tax increase of 9.5 cents per gallon over four years.  The prosecutors, who stand to gain the millions of dollars in additional gas tax revenue if I-912 passes, brought the case at the instigation of Keep Washington Rolling, I-912’s political opponents, and they continued to coordinate both legal and media strategy with these political operatives.  To make matters worse, the prosecutors handed over their prosecutorial authority to a private law firm that stands to gain politically and financially from harassing the initiative campaign.  The firm, Foster, Pepper & Shefelman PLLC, is not only a member of Keep Washington Rolling as well as a substantial contributor to it, but also “bond counsel” to the State agency that would issue bonds based on the revenue derived from the tax increase.  Simply put, with no tax, there is no revenue, no bond issuance, and therefore fewer fees for Foster Pepper.

Foster Pepper sued NoNewGasTax.com (now, Yes912.com), the political committee promoting the initiative, alleging the campaign violated the State’s campaign finance laws.  The complaint alleged that on-air discussions urging listeners to support the initiative by two radio talk show hosts constituted “in-kind” contributions by the radio station to the No New Gas Tax Committee that should have been disclosed.  (An “in-kind” contribution is a non-monetary contribution, like printing services or equipment.)  In July, the Thurston County Superior Court granted the private prosecutors’ preliminary injunction motion forcing the campaign to report on-air discussions of the initiative as “in-kind” contributions.

In August, the campaign filed a countersuit, alleging that the prosecutors’ actions violated its free speech, free association and due process rights.  The prosecutors moved to dismiss those claims and today the Superior Court granted that motion.

Despite the existence of a state statute and administrative regulations issued by the Washington Public Disclosure Commission that expressly exempted on-air editorial comment from regulation under the state campaign finance laws, the court held that its earlier “implied” determination in the preliminary injunction portion of the case—made without any discovery—that these two hosts were “principal organizers of the campaign” stripped them of their exemptions under state law and meant that their commentary could be subject to regulation as campaign contributions.

The court held that “even minor limitation on [the campaign’s] freedom of speech and association . . . by the requirement in the preliminary injunction for disclosure of on-air in-kind contributions, is permitted under well-established state and federal law.”

“Today’s decision is profoundly disturbing for all those who believe that it is unconstitutional for the government to determine what information you hear or read,” said Maurer.  “It marks an unprecedented expansion of campaign finance laws into areas previously thought to be protected by the free speech guarantees of the state and federal constitutions.  It also gives a tremendous piece of ammunition to politically motivated prosecutors to intimidate and threaten voices in the media with which they disagree.”

IJ-WA Staff Attorney Michael Bindas said, “Today’s decision permits politically-motivated prosecutors to hand over their prosecutorial authority directly to a campaign’s political opposition.  This invites prosecutors across the state to engage in precisely the kind of abuses that occurred in this case.  Today, whether you will be prosecuted for violating the campaign finance laws apparently depends on whether you are promoting a political issue that San Juan Prosecuting Attorney Randall Gaylord likes or opposes.”