Diverse Coalition Lines Up to Support Free Political Speech On the Talk Radio Airwaves

John Kramer
John Kramer · June 10, 2006

Seattle, WA.—An ideologically diverse group of national and state organizations representing members of the media, civil rights groups and campaign finance reformers submitted “friend of the court” briefs to the Washington Supreme Court yesterday urging the Court to halt an attempt to use the State’s “campaign finance” regulations to silence political speech in the media.

The American Civil Liberties Union of Washington, the Center for Competitive Politics (co-founded by former Federal Elections Commission Chairman Bradley Smith), the Washington State Association of Broadcasters, the Cato Institute and the Building Industry of Washington submitted the briefs in San Juan County v. No New Gas Tax. The organizations are backing Yes912.com (formerly No New Gas Tax) in arguing that on-air discussion by talk radio hosts John Carlson and Kirby Wilbur about an initiative to repeal a state gas tax are not “in-kind” contributions to Yes912.com under the State’s campaign finance laws.

As of yesterday’s deadline, no one had submitted a brief in support of the municipalities that prosecuted Yes192.com for failing to report on-air discussions as “in-kind” contributions.

“The number and diversity of groups lining up against the abuse of campaign finance laws to silence political speech speaks volumes about the very real threat to free speech this case poses,” said Bill Maurer, executive director of the Institute for Justice Washington Chapter (IJ-WA), the libertarian public interest law firm that represents Yes912.com for free. “Broadcasters, campaign finance reformers and groups across the ideological spectrum all agree: political speech is not a campaign contribution subject to government regulation.”

Three briefs were submitted supporting free speech by:

  • The American Civil Liberties Union of Washington, a statewide, nonpartisan, non-profit organization of over 20,000 members dedicated to the preservation of civil liberties Download Brief
  • The Washington State Association of Broadcasters, an association of more than 100 radio and television broadcasters dedicated to protecting the interests of Washington’s broadcast community Download Brief
  • Jointly, the Center for Competitive Politics, the Cato Institute, a national, non-profit public policy research foundation committed to individual liberty, free markets and limited government, and the Building Industry Association of Washington, a nearly 12,000-member group that represents Washington’s housing industry and works for reduction in the scope of government and expansion of free enterprise Download Brief

Michael Bindas, IJ-WA’s staff attorney said, “These groups know, as do most Washingtonians, that government should be in the business of protecting free speech rights, not trampling them. There may have been disagreement on the initiative itself, but everyone should agree that speaking out on a political issue should not result in government intimidation and harassment.”

In addition, all three briefs—including the one joined by former FEC Chairman Bradley Smith’s organization—point out that Carlson and Wilbur’s commentary should fall within the “media exemption” under both FEC and Washington State rules. Such media exemptions are designed to preserve constitutional speech and press protections by shielding media commentary from government regulation.

In fact, in just the last month, the FEC issued a rulemaking decision and decisions in two enforcement actions involving the on-air commentary of Los Angeles talk radio hosts John Kobylt and Ken Chiampou and Seattle talk radio host Dave Ross. The decisions make clear that the media exemption applies to talk radio hosts regardless of whether they are biased or unbalanced in their commentary, coordinate with a candidate or campaign, expressly endorse a candidate or campaign, or solicit contributions for a candidate or campaign.

“The agency charged with enforcing federal campaign regulations—not known to be shy about enforcement—has made it clear that free speech protections extend to talk radio hosts,” added Maurer. “The Washington Supreme Court should follow the FEC’s lead and the urging of this diverse coalition and fully protect political speech.”

The case, San Juan County v. No New Gas Tax, began when San Juan County and the cities of Seattle, Kent and Auburn sued Yes912.com (formerly No New Gas Tax), the committee sponsoring an initiative to repeal last year’s 9.5-cent increase in Washington’s gas tax. The municipalities, which sought to preserve the gas tax increase and the millions of dollars in transportation projects it would fund, claimed that on-air discussions of the initiative by talk radio hosts John Carlson and Kirby Wilbur were “in-kind” contributions to Yes912.com, subject to government regulation under Washington’s campaign finance laws. The trial court agreed, ordering that the hosts’ political discussions were to be treated as campaign contributions.

Even though the initiative lost at the polls on Election Day, Yes912.com decided to appeal. In an unusual move, the Washington Supreme Court agreed to review the case directly, bypassing the Court of Appeals. The Court will hear argument in the case on June 8.

Washington Attorney General Rob McKenna also submitted a “friend of the court” brief. While he did not take sides in the dispute, he cautioned the Court that, “without clearly established boundaries, the media may be subject to harassment that could have a chilling effect on important speech necessary to inform people about elections.”