The Volokh Conspiracy

You might think there wouldn't need to be a court decision about this — but it turns out such a decision was necessary. Some excerpts from today's Washington Supreme Court opinion:

Kirby Wilbur and John Carlson are radio talk show hosts with regularly scheduled programs on 570 KVI AM, a radio station owned by Fisher Communications, Inc. During their broadcasts, Wilbur and Carlson typically discuss their views on political and social issues. Fisher charges for political advertising during the "commercial" segments of its radio programs, but it does not charge for the value of any content time associated with Wilbur's and Carlson's talk shows.

Wilbur and Carlson strongly criticized the legislature's enactment of the fuel tax and devoted a substantial portion of their radio broadcasts to supporting the I-912 [No New Gas Tax / NNGT] campaign. In particular, they encouraged listeners to contribute funds to NNGT, to visit NNGT's web site and offices to obtain petitions, and to circulate and gather signatures on the petitions in order to qualify the initiative for the ballot.

On June 22, 2005, the prosecuting authorities of San Juan County and the cities of Kent, Auburn, and Seattle filed a complaint against NNGT, alleging that it violated the disclosure provisions of the FCPA by, in part, failing to report "valuable radio announcer professional services and valuable commercial radio air-time" as a campaign "contribution" under RCW 42.17.020(15)(a)....

About two weeks before the deadline to qualify the initiative for the ballot, the prosecutors sought an injunction to prevent NNGT "from accepting in-kind contributions from Fisher Communications" until it complied with the disclosure requirements. The prosecutors also sought fines, investigation costs, and an award of attorney fees....

The trial court granted a preliminary injunction, finding that NNGT had received "contributions of air time for political advertising purposes in support of Initiative 912 from Fisher Communications, owner and operator of the radio station 570 KVI." The court also found that Fisher's "donation of free air time" is a reportable "contribution" and required NNGT to disclose its value to the PDC.

Counsel for NNGT requested clarification of the trial court's order, stating, "I'm not sure what you're asking us to do, and here is my problem, your Honor. How are we to decide what is political advertising and what's not?" The trial court declined to clarify its order, stating "you have the same problem that any other candidate or campaign has in trying to understand how to make full reporting, and I'm not inclined to treat you any differently." In compliance with the order, NNGT reported a $20,000 contribution from Fisher Communications. NNGT also reported the value of other media discussions in support of the ballot measure....

But this wasn't just about disclosure: In addition to the disclosure requirement, Washington law "ma[kes] it illegal to either give or receive a contribution of more than $5,000 to any campaign within 21 days of an election." NNGT therefore asked the court of appeals to issue an emergency stay of the court order:

Fisher's vice-president and general manager, Robert I. Dunlop [Fisher is the company that owns the radio station], signed a declaration stating:

We would have no way to assess when or whether a "$5,000" threshold would be crossed. Therefore, I will have to direct Mr. Carlson and Mr. Wilbur to not discuss I-912 during the content portions on their programs to avoid this risk [of violating the contribution limit] because Fisher Seattle Radio does not wish to face a possible prosecution for violation of the Fair Campaign Practices Act

The court of appeals denied the stay.

Now the good news: The Washington Supreme Court held that the trial court's decision is wrong, and that talk show hosts are covered by the "media exemption" from Washington campaign finance law — an exemption that excludes from regulated "contributions" any

news item, feature, commentary, or editorial in a regularly scheduled news medium that is of primary interest to the general public, that is in a news medium controlled by a person whose business is that news medium, and that is not controlled by a candidate or a political committe even when they spend a lot of time supporting a campaign.

This is true regardless of whether the talk show hosts get heavily involved in the political campaign, and whether they coordinate their speech with the campaign committee. It is also true regardless of whether the talk show hosts encourage listeners to contribute to the compaign; the Washington Supreme Court expressly overruled a Washington Public Disclosure Commission declaratory order stating that "if the talk show host uses the air time to solicit votes, funds, or volunteer services, or expressly advocates either in favor of his campaign or for the defeat of his opponent, the air time constitutes a reportable contribution."

As I said, one would have hoped that it wouldn't take years of litigation, even temporary suspension of talk show hosts' political advocacy, and who knows how much money (though apparently it was the Institute for Justice's money) to establish this. Still, at least it's established — at least in Washington. Congratulations and many thanks to the Institute for Justice's Washington State chapter for the victory.

Of course, keep in mind that, "We note that nothing in our decision today forecloses the legislature, or the people via the initiative process, from limiting the statutory media exemption. Whether, and to what extent, a media exemption is constitutionally required is beyond the scope of this opinion." So maybe the Washington legislature could, according to modern campaign finance law, heavily regulate talk show hosts, and even shut down their advocacy (if the $5000 contribution cap, and not just the disclosure requirement, were upheld — something I don't think could happen, given the Supreme Court's First National Bank of Boston v. Bellotti decision, but who knows?). A pretty sad state of affairs, it seems to me, despite the happy result in this particular decision. (For more on the sadness, see the next post in this chain, which discusses why part-time bloggers may be excluded from this protection.)