Two Justices’ Concurring Opinion in the Radio-Talk-Show-Speech-as-Regulated-“Contribution” Case:

Here’s the concurrence of Justice James M. Johnson, joined by Justice Richard B. Sanders, in the Washington Supreme Court decision I noted below. The Justices are arguing in favor of awarding attorney fees to the ballot measure campaign (something that the rest of the court left to the trial court to decide in the first instance); but they also more stridently condemn the prosecutors’ action:

Today we are confronted with an example of abusive prosecution by several local governments. San Juan County and the cities of Seattle, Auburn, and Kent (hereinafter Municipalities) determined to file a legal action ostensibly for disclosure of radio time spent discussing a proposed initiative. This litigation was actually for the purpose of restricting or silencing political opponents and was quickly dismissed after the filing deadline for the initiative. The disregard for core freedoms of speech and association in this case, and resulting interference with these constitutional rights, is described in the majority. The Municipalities augmented their prosecuting attorneys and legal staff with an interested private law firm to engage in this prosecution of No New Gas Tax (NNGT), in a transparent attempt to block filing of an initiative, which is also a constitutional right in Washington.

I concur with the majority’s holding construing the statute in a constitutional manner to not apply to the political speech of the defendants. I write separately to emphasize that the contrary positions of the Municipalities and court below resulted in infringing constitutional rights. Thus, the majority properly reverses and remands for further proceedings. At the least, this remand requires that NNGT receive reasonable attorney fees and trial costs….

The Municipalities involved expected millions of dollars from increased tax revenue if Initiative 912 (I-912) failed to qualify for the ballot. The private law firm would potentially derive financial benefit from its role as one state bond counsel and volunteered to help litigate against NNGT “on behalf of the State of Washington.” (The term “pro bono publico” is not appropriate here.)

An early motion in the Municipalities’ litigation resulted in this preliminary injunction, which had the effect of requiring Fisher Communications and radio station 570 KVI to limit discussion of I-912 on the radio. NNGT argues that the “record is clear that the Municipalities sued NNGT to interfere with its efforts to pass I-912.” I agree.

The preliminary injunction required that KVI’s on-air commentary be counted as an in-kind campaign contribution reported before any further campaign expenditures. Since the injunction mandated nearly immediate reporting, and it was not possible to completely segregate the relevant portions of the talk show, almost all the air time was reported. The full effect of this injunction’s characterization of talk show commentary as in-kind contribution is evident when RCW 42.17.105(8) is also considered. That statute states in relevant part any in-kind campaign contribution in excess of $5,000, within 21 days of the general election, is a violation of the Fair Campaign Practices Act (FCPA). Id. Thus, the injunction was “chilling” of speech because of the substantial risk that KVI on-air commentary regarding NNGT, in the three weeks preceding the general election, would be a donation in excess of the $5,000 cap, thereby incurring financial sanctions. The majority noted that the Public Disclosure Commission (PDC) determined after the preliminary injunction that the $5,000 limit would apply. Additionally, the Municipalities’ complaint requested penalties, treble damages, attorney fees, and costs….

Clearly, “the First Amendment prohibits the State from silencing speech it disapproves, particularly silencing criticism of government itself. Threats of coerced silence chill uninhibited political debate and undermine the very purpose of the First Amendment.” 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.

Granting NNGT complete reasonable attorney fees and trial costs is appropriate and required here. This may serve to deter future state actors from using their authority to act similarly to deprive individuals of constitutional rights of speech (or initiative)….

In the instant case, it appears that the Municipalities’ prosecution of the case, and especially the preliminary injunction, was calculated to muzzle media support of the NNGT initiative. This behavior sought to keep the initiative from ballot qualification during the very limited window between passage of the disputed legislation and the initiative filing deadline. This lawsuit was not justified under the law (the majority so holds) and was offensive to the notion of free and open debate.

By the way, congratulations to our own Erik Jaffe, who I just noticed was on two of the amicus briefs in this case.

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