Hope for Free Speech

Seattle—In the lead up to last November’s election, a Washington trial court ordered Yes912.com, the campaign sponsoring the I-912 initiative to repeal the 2005 gas tax increase, to report favorable discussions of the initiative on two talk radio shows as financial contributions subject to regulation under Washington’s campaign finance laws. Because of the threat this decision posed to the unfettered exchange of ideas, Yes912.com appealed the decision by taking the unusual step of bypassing the Court of Appeals and asking for direct review in 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.” Yesterday, the Supreme Court accepted direct review. In so doing, the Court offers hope that Washingtonians may yet be permitted to speak freely on matters of public import without harassment by the government.

The case began in June 2005, when San Juan County and the cities of Kent, Auburn and Seattle (the “Municipalities”) sued Yes912.com (formerly No New Gas Tax) under the State campaign finance laws, alleging that the campaign had failed to report “in-kind contributions” it supposedly received from KVI 570 talk radio hosts John Carlson and Kirby Wilbur. The supposed “in-kind contributions” were Carlson and Wilbur’s on-air discussions of I-912—that is, pure political speech on an issue of importance to all Washingtonians. According to the Municipalities, such discussions were not free speech, but rather were financial contributions to the campaign.

The purpose of the Municipalities in filing the action was clear. The Municipalities stood to gain millions (in Seattle’s case, billions) of dollars in transportation projects funded by bonds guaranteed by the gas tax revenues. Silencing supporters of I-912 would result in the initiative’s defeat and ensure that the Municipalities got their money. To file the case, the Municipalities retained the law firm Foster Pepper, a member of, and donor to, Keep Washington Rolling, Yes912.com’s political opponent. To make matters worse, Foster Pepper was bond counsel to the state and thus stood to gain tens of thousand of dollars in attorneys’ fees for issuing the transportation bonds if I-912 were defeated.

The Thurston County Superior Court gave the Municipalities their wish on July 1, issuing a preliminary injunction that ordered Yes912.com to treat media discussions like Wilbur and Carlson’s as reportable contributions to the campaign. Yes912.com then filed counterclaims against the Municipalities, arguing that their prosecution of Yes912.com infringed the campaign’s free speech and association rights under the Washington and U.S. Constitutions. The superior court, however, dismissed the counterclaims a week before the November election, again holding that discussions concerning I-912 were properly subject to state regulation.

Even though I-912 was defeated at the polls on November 8, Yes912.com pursued an appeal to ensure the protection of free speech under Washington law. The campaign asked the Washington Supreme Court to hear the case directly, bypassing the Court of Appeals. In an order dated April 4, 2006, the Supreme Court agreed to do just that. The Court will hear argument in the case this spring.

“This case is incredibly important in Washington and, in fact, for the whole country,” said William Maurer, executive director of the Institute for Justice Washington Chapter (IJ-WA), the non-profit law firm representing Yes912.com. “The power to regulate speech is the power to suppress it, and suppressing speech is precisely what the municipalities were attempting to accomplish in prosecuting Yes912.com.”

“We are very happy that the Supreme Court has agreed to hear this case,” added Michael Bindas, IJ-WA’s staff attorney. “If allowed to stand, the trial court’s decision will chill political discourse in the 2006 election and beyond. For the sake of open and honest debate, and to ensure the ability of Washingtonians to make freely informed decisions about the issues affecting them, the Supreme Court should make clear that political speech is not subject to prosecution and harassment when it is about an effort the government doesn’t like.”