Campaign Appeals Court Order Chilling Free Speech, City of Auburn Seeks to Withdraw from Politically Motivated Suit

John Kramer
John Kramer · September 8, 2005

Washington, D.C.—The Institute for Justice Washington Chapter (IJ-WA) late yesterday asked a Washington state appeals court to overturn a lower court order requiring an initiative campaign to report media discussions of the campaign as “in-kind” contributions under Washington’s campaign finance laws. IJ-WA, which represents the No New Gas Tax campaign for free, argues that the order and the application of campaign finance laws to media discussions of political campaigns chills free speech and is a clear violation of the First Amendment.

Since the order by a Thurston County Superior Court judge in July, NONEWGASTAX.COM, which sponsored Initiative 912 to repeal the state’s new gas tax increase, has tried to track all media mentions of its campaign, assign them dollar values and report them as in-kind contributions. The order came about after three Washington cities and one county filed suit against No New Gas Tax in June alleging that its failure to report favorable discussions by two talk-radio hosts as in-kind contributions is a violation of state campaign finance laws. In August, IJ-WA took up the case, San Juan County v. No New Gas Tax, and filed papers with the Thurston County court effectively counter-suing the cities for violating the First Amendment. Those proceedings before the trial court are continuing.

“We are confidant that the Court of Appeals will see this case for what it is—an unconstitutional attempt to stop the media from covering an initiative these municipalities do not like,” said Bill Maurer, executive director of IJ-WA.

In its motion to the Washington Court of Appeals, Division II, IJ-WA argues that the order chills free speech and is unconstitutionally vague. The Institute points out that the order will effectively stop all discussion in the media of the campaign because it is illegal for any person to contribute more than $5,000 to a campaign three weeks before the general election. Because the order does not say how to differentiate between media discussions that are in-kind contributions and those that are not, or how to evaluate the value of such discussions, the safer thing for the media will be to simply stop talking about the campaign.

Separately, in court papers filed in late August, one of the cities that brought the suit, the City of Auburn, said it seeks to withdraw its participation in the lawsuit against NONEWGASTAX.COM.

“The City of Auburn’s attempt to cut and run after it was sued shows that their lawsuit was nothing more than an attempt to shut down the campaign in the first place,” said Bill Maurer, executive director of IJ-WA. “But the fact remains that Auburn and the other municipalities violated NONEWGASTAX.COM’s constitutional rights by trying to squelch discussions of the I-912 campaign during the key weeks when the campaign was collecting signatures to qualify for the ballot. They should be held accountable for their efforts to interfere with fundamental rights guaranteed under both the Washington and U.S. constitutions.”

NONEWGASTAX.COM spokesman Brett Bader said, “The City of Auburn was eager to try to stop the campaign’s signature gathering effort in its tracks. But now that it may be held liable for violating the campaign’s civil rights, the City realizes that was the wrong thing to do.”