Washington Supreme Court Hears First Amendment Case:

John Kramer
John Kramer · June 6, 2006

Arlington, VA—On Thursday, June 8, the Washington Supreme Court will hear a case that will decide whether government may use campaign finance laws to regulate and restrict political speech, including speech by media. Across the nation, campaign finance laws—which the public expected would be used to control money in elections—are instead being used to stifle the speech of those fighting against the political establishment.

The case began in June 2005, when San Juan County and the cities of Kent, Auburn and Seattle sued Yes912.com (formerly No New Gas Tax) under the State’s 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, which would have rolled back a massive gasoline tax increase of 9.5 cents per gallon over four years. What Carlson and Wilbur engaged in was 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.

“Freedom of the press—not only to report on issues of vital public importance, but also to advocate a position on those issues—is an American birthright and a tradition stretching back to the Founders,” said Michael Bindas, an attorney with the Institute for Justice Washington Chapter, which represents Yes912.com. “The government here is trying to decide what gets said on the air and who says it, but in America, government does not have that power. Nor should the government be in the business of monitoring and investigating interactions between the media and campaigns. This is just the kind of intrusion into the editorial discretion of the press our State and Federal constitutions were designed to prevent.”

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.

On July 1, 2005, the Thurston County Superior Court issued a preliminary injunction ordering 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 one 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, 2005, Yes912.com appealed 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.

“If the government can use its power to stifle and investigate talk radio hosts today, editorial writers can be the next target tomorrow,” warned William Maurer, executive director of the Institute for Justice Washington Chapter. “If the government’s position is accepted here, the media’s decisions will always be subject to the micromanagement and second-guessing of politically motivated prosecutors. If the media does not want the government looking over its shoulders constantly, the result will be that the media will simply avoid discussing controversial subjects.”

An ideologically diverse group of national and state organizations representing members of the media, civil rights groups and election law experts submitted “friend of the court” briefs in the case backing Yes912.com. The American Civil Liberties Union of Washington, the Washington State Association of Broadcasters, as well as, jointly, the Center for Competitive Politics (co-founded by former Federal Elections Commission Chairman Bradley Smith), the Cato Institute and the Building Industry of Washington submitted the briefs. 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.” No one filed a brief supporting the government’s prosecution of Yes912.com

In addition, in the last two months, the FEC has issued a rulemaking decision and a decision in an enforcement action involving the on-air commentary of Los Angeles talk radio hosts John Kobylt and Ken Chiampou. The decisions make clear that the media must be protected from investigation and prosecution by the government for statements made by hosts in support of a political issue regardless of whether the hosts 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 FEC’s decisions, and the broad range of support of Yes912.com’s position, show that the government’s prosecution of Yes912.com is a radical gutting of the protections granted to the press and campaigns in federal and state law.

Chip Mellor, president and general counsel of the Institute for Justice, said, “The government has purposefully tried to make the definition of what is a contribution vague, and there is danger to free speech in that vagueness. When a radio talk show host, editorial writer or columnist can’t be sure if their supportive statements are going to harm the side they champion, we know what they will do. They will remain silent rather than harm what they believe in.”

In Colorado, the State’s vague campaign finance laws were used to go after the Independence Institute, a non-profit think tank that opposed two referenda that would raise taxes and increase government spending. In a complaint filed with the Colorado Secretary of State, an advocate for the tax increase claimed the Independence Institute was an “issue committee” that was “campaigning” against the referenda and had violated campaign finance laws by failing to register with the State, report all expenditures and contributions, and disclose the identities of its supporters. Although the complaint was ultimately thrown out as unwarranted, after experiencing firsthand how these laws can be used as a political weapon to stifle free speech and impose steep financial and opportunity costs on dissenters, the Independence Institute, represented by the Institute for Justice, filed suit challenging the vague language of Colorado’s campaign finance laws as well as their disclosure and reporting requirements that chill political speech and association.