Talk Show Hosts Allowed To Freely Advocate for Ballot Measure:

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.)

What About Bloggers Arguing for Ballot Measures in Washington State?

As I note below, the Washington Supreme Court just confirmed that radio talk show hosts' advocacy of a ballot measure is not regulated as a campaign "contribution" under Washington state law, because the advocacy is exempted by the "media exemption," which excludes

A 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 committee ....

But what if a part-time but very popular blogger (think of the PowerLine people, for instance) advocates for a ballot measure? Uh-oh -- the media exemption only covers media "controlled by a person whose business is that news medium." The site is likely a "news medium" (news is understood here to include opinion). But even if the site makes some money, if it's a part-time sideline for the blogger (assume it's a solo blog, just for the sake of simplicity), it doesn't sound quite accurate to say that the blogger's "business is that news medium." And that's even clearer if the site makes no money at all, or only a tiny amount (not implausible even for a site that's prominent enough that its backing may be quite valuable to a campaign).

The blog posts supporting the ballot measure may thus have to be reported as contributions. What's more, state law would limit them to $5,000 worth of help (whatever that means for a blog) "within 21 days prior to [the] election."

So too bad for you, concerned citizen: Unless your "business is [a] news medium," you're regulated. The established, professional media are of course exempt; but, no, not you.

This fortunately doesn't seem to be the case under federal law (though we can't be entirely certain); but though the Washington Supreme Court's decision suggests that Washington courts interpreting the Washington statute should generally follow federal courts' interpretation of the federal statute, here there is an express statutory difference between the two statutes -- the Washington statute has the "business is that news medium" clause, and the federal one doesn't.

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.

Related Posts (on one page):

  1. Two Justices' Concurring Opinion in the Radio-Talk-Show-Speech-as-Regulated-"Contribution" Case:
  2. What About Bloggers Arguing for Ballot Measures in Washington State?
  3. Talk Show Hosts Allowed To Freely Advocate for Ballot Measure: