Latest free speech victory not last fight

Last week brought another reminder not to take First Amendment freedoms for granted. True, the Washington state Supreme Court stood up for free speech. But the decision came two years late and leaves a framework in place for further abuse.

The case in question stems from a dissent-suppressing lawsuit filed in 2005 by local governments supporting a 9.5-cent-a-gallon gas tax hike passed by the Legislature. Popular KVI talkers Kirby Wilbur and John Carlson, both well-known conservatives, used their programs to champion the No New Gas Tax initiative, which qualified as Initiative 912. Tax boosters went to court, implausibly charging that the pair’s on-air advocacy amounted to a campaign contribution under Washington’s campaign finance laws. Thurston County Superior Court Judge Chris Wickham agreed.

The voters ultimately rejected the initiative, keeping the taxes in place. (Despite his opposition to the measure, Wilbur had me on his morning show as a supporter of the tax hike during the campaign.)

Last week, the state Supreme Court unanimously and sensibly reversed Wickham, slapping the folks who brought the suit so hard their cheeks should glow in the dark. That should be the end of it. But somehow I doubt it.

The municipalities behind the suit — San Juan County and the cities of Seattle, Auburn and Kent — claimed that they just wanted everyone to follow the same rules. In a press release issued by the pro-tax campaign, which included many major businesses and the law firm handling the case for the municipalities, San Juan County Prosecutor Randall Gaylord said, “We want honesty and disclosure … . It’s the little guy that will get hurt if they don’t comply.”

Justice Jim Johnson, joined by Justice Richard Sanders, saw through the smoke. In a blistering concurrence he says, “Today we are confronted with an example of abusive prosecution … for the purpose of restricting or silencing political opponents … calculated to muzzle media support (and) offensive to the notion of free and open debate.”

But of course these governments weren’t interested in free and open debate. They were interested in winning. Saddling KVI with regulatory red tape was simply a tactic.

The upside-down populism that would restrict speech to protect the little guy has echoes elsewhere. When legislators wanted to restrict ballot access by imposing new regulations on signature gatherers, it was to save us from fraud and abuse. But there didn’t seem to be much evidence that fraud and abuse had contaminated the initiative process.

In each instance, powerful interests have signaled a willingness to confront petulant populists by throwing obstacles in their path.

That the efforts have so far failed doesn’t mean they do not have an effect. As Justice Johnson writes, “… the chilling effect upon the exercise of First Amendment rights may derive from the threat of prosecution, and not just by the prospects of its success.”

The court’s KVI decision hinged on the “media exemption” in Washington’s campaign finance law. Because Carlson and Wilbur appeared in a “regularly scheduled news medium … controlled by a person whose primary business is that news medium” their advocacy was not a campaign contribution under the law.

Others may not be so fortunate. On his popular blog, UCLA law professor Eugene Volokh says the decision holds little comfort for bloggers. Unless you’re in the news business, you’re regulated, which means you may be silenced. The “new media” exists largely outside protective umbrella.

Legislators and public officials occupy the bully pulpit in the marketplace of ideas. They have abundant access to the media, community forums and opinion leaders. Carlson and Wilbur may have made a lot of noise, but they were mostly talking into the KVI echo chamber.

When folks with influence, money and media access decide to harass, rather than engage, the opposition, they look like bullies who are unwilling or unable to defend their positions. They even manage to turn their opponents into sympathetic victims, not an easy transformation for some of them. The “shut up, he explained” strategy insults the public and fuels the populist distrust business and civic leaders want to curb.

For now, free speech in Washington got a reprieve. Celebrate the court’s decision, but don’t consider the matter settled. It’s never settled.