Victory for Free Speech & Free Press Over Campaign Finance Regulation In Washington Supreme Court

John Kramer
John Kramer · April 26, 2007

Arlington, Va.—In a unanimous ruling and a victory for free speech, the Washington Supreme Court today rejected one of the most outrageous abuses of state campaign finance laws in the nation when it ruled that media commentary does not qualify as an “in-kind” contribution that must be reported to the state. The case is San Juan County v. No New Gas Tax.

“This is a vindication of free speech and freedom of the press, and a direct and clear repudiation of the use of Washington’s campaign finance laws to intimidate and harass media voices with which the government disagrees,” said William Maurer, executive director of the Institute for Justice Washington Chapter (IJ-WA), which represents (formerly and argued the case before the Washington Supreme Court. “Once again, the people of Washington can rest assured that the news and commentary they hear has not been censored by the government.” was sued in June 2005 by San Juan County and the cities of Kent, Auburn and Seattle under the state’s campaign finance laws for failing to report supposed “in-kind contributions” from KVI 570 talk radio hosts John Carlson and Kirby Wilbur. The prosecutors said the hosts’ on-air discussions of I-912, an initiative to roll back a gasoline tax, were not free speech but rather were financial “in-kind” contributions to the campaign.

Not only did the prosecutors’ novel theory impose burdens on the campaign—having to track and assign a monetary value to ordinary media commentary—it threatened the free speech rights of members of the media. Washington law limits the size of contributions in the final weeks of campaign, meaning the hosts’ media commentary would have been limited by state law.

In the court’s opinion, Justice Barbara Madsen emphasized the importance of a free press: “[E]xempting the media from campaign finance regulations legitimately protects press’s unique role in ‘informing and educating the public, offering criticism, and providing a forum for discussion and debate.’”

“Fortunately, the specter of government censorship of citizens and the media has been lifted in Washington for the moment, but this case demonstrates that campaign finance laws are an ever-present threat to First Amendment rights,” said Michael Bindas, an IJ-WA attorney. “The abusive tactics of the prosecutors in this case show that campaign finance regulations give the government too much power to regulate what should be free speech.”

In concurrence, Justice Jim Johnson noted, “Today we are confronted with an example of abusive prosecution by several local governments. … This litigation was actually for the purpose of restricting or silencing political opponents.”

“We’re delighted the court vindicated our right to speak, but we never should have had to go to court simply to defend that right,” said Brett Bader of “All along, we’ve said this prosecution was simply the political establishment using campaign finance regulations as a tool to hammer political opponents with litigation.”

The Washington case demonstrates the growing intrusion of campaign finance regulation into the political speech and activities of ordinary Americans—including the media—not just at the federal level, but also in the states. For example, in Colorado, IJ is defending neighbors in the tiny neighborhood of Parker North, who banded together to fight annexation to a nearby town—and found themselves sued for putting up yard signs and passing out flyers without first registering with the government. So did a non-profit think tank in Colorado that spoke out against two referenda campaigns.

“Perhaps the most dangerous trend in speech regulation is happening in the states, where the bureaucratic red tape required to simply speak out about politics is growing rapidly,” said Steve Simpson, an IJ senior attorney. “This decision is a welcome break from that trend.”

Today’s ruling also shows that courts are beginning to look more skeptically at so-called campaign finance reform and to take seriously how such regulations stifle speech. Indeed, the U.S. Supreme Court in recent cases, including the Randall v. Sorrell and Wisconsin Right to Life rulings, as well as yesterday’s argument in the second round of Wisconsin Right to Life, has expressed serious reservations about the over-reach of political speech regulations.

“The pendulum is swinging back in favor of the First Amendment rights of all Americans and against ever-encroaching government regulation of speech,” said Chip Mellor, IJ’s president and general counsel.

In today’s ruling, the court dismissed the preliminary injunction issued by the trial court against that required the campaign to report radio commentary as “in-kind” contributions. The court also remanded the case to the trial court to determine the nature of any constitutional violations the prosecutors committed.