NEWS MEDIA UPDATE · WASHINGTON · Prior Restraints · May 1, 2007
Radio broadcasts are not political contributions
May 1, 2007 · Two Seattle radio talk-show hosts using airtime to support an anti-gas-tax initiative are not required to report their broadcasts as in-kind political donations, the unanimous Washington Supreme Court ruled last week.
The decision overturns a 2005 ruling by a trial judge.
KVI-AM hosts John Carlson and Kirby Wilbur had waged an extensive on-air campaign to promote a citizen operation, Initiative 912, to repeal a 9.5-cent-a-gallon gasoline tax increase approved by the state Legislature earlier in 2005.
In his 2005 opinion, Judge Chris Wickham said the airtime they spent promoting the initiative equated to an in-kind campaign contribution whose value should be reported to the state Public Disclosure Commission. However, Washington law states that editorials, commentaries and other forms of news reports are not considered contributions.
Wickham accepted the argument of the local governments that filed the lawsuit that the broadcasts did not fall under the media exemption because they were not commentary but “political advertising.”
Writing for the unanimous state Supreme Court last week, Justice Barbara Madsen reversed the lower court’s decision, saying the hosts’ roles fell within the typical limits of radio programming.
“[T]he mere fact that a broadcast has value to a campaign, or includes solicitation of funds, votes, or other support, does not convert ‘commentary’ into ‘advertising’ when it occurs during the content portion of a broadcast for which payment is not normally required,” Madsen wrote.
Justice Jim Johnson added in his concurring opinion, “Prosecutors must not use the threat of a punitive lawsuit, amounting to an unconstitutional prior restraint on free speech, to block political opponents from exercising their constitutional rights.”
The state Supreme Court also revived a countersuit filed by the No New Gas Tax operation against the local governments — San Juan County and the cities of Auburn, Kent and Seattle — that first sued the hosts. The countersuit claims the municipalities trampled the hosts’ First Amendment free-speech and free-association rights.
William Maurer, the attorney who argued the case before the court for the radio hosts, applauded the decision in a statement.
“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 Maurer, who is executive director of the Institute of Justice’s Washington chapter.
(San Juan Co. v. No New Gas Tax, Media Counsel: William Maurer, Institute of Justice, Seattle) — NC