Arlington, Va.—If a reporter or media commentator is pitched a story and chooses to write about that issue, do they instantly become “an agent” of the person, company or campaign that pitched them?
Of course not.
But San Juan County Prosecuting Attorney Randall Gaylord thinks otherwise.
The San Juan Prosecutor made the astonishing claim in a brief filed with the Washington Supreme Court on April 21, in the case San Juan County v. No New Gas Tax—the case challenging the prosecutor’s misuse of Washington’s campaign finance laws. The prosecutor claimed, “at least one of the KVI hosts was an agent of the Campaign when he was asked to ‘mention certain issues’ on his talk radio program.” In this light, the prosecutor asked the Supreme Court to treat the hosts’ commentary as reportable “contributions” to the campaign, subject to state regulation.
Bill Maurer, the executive director of the Institute for Justice Washington Chapter, which is representing the campaign in its challenge, said, “What’s really disturbing here is that the prosecutor claims that every time a member of the media is pitched to cover an issue of public importance, if that reporter or commentator does their job—if he or she reports on the issue or comments on it—they have magically become a member of that campaign. That flies in the face of a free press and free public discourse. It is yet another means the government is using to try to intimidate the media into silence.”
Maurer continued, “This case is not about whether members of a campaign sometimes ask members of the press to report on particular issues. Campaigns often have contacts like this with reporters and journalists. The case is about whether the government can monitor these contacts and harass campaigns and members of the press when it does not like what is said.”
Michael Bindas, staff attorney for IJ-WA, added, “By claiming that a talk show host’s commentary becomes ‘political advertising’ subject to regulation under campaign finance laws, the prosecutor has clearly demonstrated what this case has been about from the beginning—attempting to quarantine campaigns that the government doesn’t like from being able to get press coverage or favorable commentary. If the media has to worry that responding to a campaign’s suggestions for news stories will strip them of their First Amendment freedoms, there will be a terrible disincentive for the media to cover issues that campaigns are trying to raise in public discourse. It creates a chilling effect and makes the government, not the media, the ultimate determinant of the editorial content of coverage.”
Maurer said, “Quite simply, the prosecutor here is trying to create an unconstitutional firewall between the press and campaigns that aren’t toeing the government line. Campaigns have just as much right to speak with the press—to urge them to cover stories and suggest issues that will educate the public—as anyone else, and the media should be able to cover these issues without fear of harassment.”
The government revealed its extreme position in a brief designed to vilify the Yes912.com campaign for simply acknowledging that a member of the campaign had asked a KVI host to discuss issues regarding the campaign. “In the campaign’s last briefing with the court, the campaign pointed out that, contrary to a mistaken claim made in an affidavit filed at the very beginning of the case a member of the campaign staff had asked radio talk show host John Carlson to discuss issues regarding the campaign. The government claims that by being honest with the court, that was somehow dishonest,” Maurer said.
Bindas asked, “What members of the media don’t get calls from campaigns looking for coverage? They all do. But just because they find the information in the pitch newsworthy doesn’t make them a part of a campaign or a company; it just makes them a reporter or commentator who is trying to do their job and advise the public on issues of public importance. The government’s position here is truly breathtaking. It writes freedom of the press out of the Constitution.”
“This case is, and has always been, about the government’s misuse of campaign finance laws to harass and try to silence voices and campaigns with which they disagree,” Maurer said. “It is one of the most important free speech and free press cases in years, which is why the Washington Supreme Court took the unusual step of accepting review directly from the trial court, bypassing the Court of Appeals.”
Maurer concluded, “The First Amendment does not allow the government to monitor media broadcasts, make determinations of when commentary is not sufficiently in sync with the government’s view, and use campaign finance laws to try to dictate the editorial content of public issues. The First Amendment fully protects the right of the media to say what they will about an issue, even if the government does not like what they say.”