Court rules that talk-show advocacy is not a campaign contribution

by Brad Shannon, The Olympian

The Washington state Supreme Court today threw out a Thurston County judge’s order in 2005 that forced backers of a gas-tax initiative to report the on-air activities of two Seattle talk-show hosts as in-kind campaign contributions.

All nine justices agreed that the ruling by Superior Court Judge Chris Wickham was incorrect, but they issued two decisions to explain their views.

“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,” William Maurer, executive director of the Institute for Justice Washington Chapter, said in a statement emailed to media. Maurer’s group had represented — previously known as — and he argued the case before the Supreme Court.

San Juan County Prosecutor Randall Gaylord, who led efforts to force the reporting of on-air advocacy as in-kind contributions, could not be reached immediately for comment.

Justice Barbara Madsen said in the majority opinion that the law has a media exemption that applied to the on-air advocacy by KVI-Radio’s John Carlson and Kirby Wilbur, who championed Initiative 912. The measure sought to overturn a gas-tax increase, but voters ultimately upheld the taxes.

The on-air advocacy efforts fell within the legal exemption because “they aired during the content portion of a regularly scheduled radio program, for which the broadcaster does not normally require payment, on a radio station that is not controlled by a candidate or political committee,” Madsen wrote.

In the minority opinion, Justice Jim Johnson said the legal action against Carlson and Wilbur was “an example of abusive prosecution by several local governments” and an interference with constitutional rights of free speech. Johnson and Justice Richard Sanders dissented from the majority in insisting that the initiative campaign receive reimbursement for legal fees.

“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,” Johnson wrote.

The case dealt with I-912, which sought to repeal the gas-tax portion of a transportation-financing package approved by the Legislature in 2005. Carlson and Wilbur advocated for the repeal measure, urging listeners to sign petitions and donate money, and critics said their work made them agents of the political campaign.

Brett Bader, the spokesman for I-912, said he and others were consulting their legal team this morning. He said the pursuit of legal fees is less important than carrying on the next phase of the case, which could include a lawsuit against San Juan County and the cities of Seattle, Auburn and Kent for violating the campaign’s constitutional rights.

The Supreme Court remanded the case back to Thurston County, finding that Wickham also was incorrect in deciding the No New Gas Tax group did not have a counterclaim against the county and cities. The high court did uphold Wickham’s denial of attorney fees to prosecutors.

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