High court hears talk-show arguments

OLYMPIA – Local governments and free-speech groups faced off in the state’s highest court Thursday, in a case that seeks to draw a line between talk-radio commentary and free political advertising.

Rule one way, the Supreme Court was told Thursday, and they’d muzzle political speech. Rule another, and they’d spur “stealth campaigns,” with media companies pushing their candidates and interests – and not reporting that campaigning anywhere.

The case hinges on two conservative Seattle radio hosts – Kirby Wilbur and John Carlson – who last year repeatedly touted an anti-gas-tax initiative on the air. Day after day, they praised I-912 and called for listeners to sign petitions and contribute cash.

As it turned out, voters rejected the initiative. But the case has led to a free-speech showdown, attracting the American Civil Liberties Union, the libertarian Institute for Justice and the state broadcasters association, among others.

The case began when Seattle and other communities sued Nonewgastax.com, the initiative’s backers, saying Wilbur and Carlson’s words went beyond normal political commentary. The local governments – who stood to benefit from transportation projects paid for by the new tax – wanted the air-time publicly reported as a campaign contribution, like donated printing services.

“This was political advertising,” said Mike Vaska, a lawyer on the cities’ side.

In July, Thurston County Superior Court Judge Chris Wickham agreed. He ordered the campaign to tally up the airtime, put a value on it, and report it to the state’s campaign-finance watchdog, the Public Disclosure Commission. Although Carlson joked on-air that his time was worth at least $100 billion, No New Gas Tax figured that the promotion was worth $20,000.

Under state law, news, editorial and commentary is not considered a campaign contribution. But this case was different, Vaska told the Supreme Court on Thursday. The two radio hosts, he said, were leaders of the measure. It’s not news commentary when you’re pushing your own initiative, he said. It’s campaigning. And that air time has to be reported as a campaign contribution.

As evidence, he cites Wilbur and Carlson’s own on-air words:

“”I need you today to go on to nonewgastax.com and … make a contribution online,” Wilbur said.

“”So if you’re with me, check out this Web site here, nonewgastax.com, and sign up and make a donation and let’s undo this thing,” Carlson said.

“They were making strategic decisions about launching this campaign,” Vaska said Thursday. “They ARE the campaign.”

Public disclosure laws are intended to show voters who’s backing whom. If publishers and broadcasters can push their own campaigns without such disclosure, Vaska said, it raises the prospect of “stealth campaigns” in which out-of-state “kingmaker” media corporations could blanket a region with political exhortations, unbeknownst to the rest of the state.

One justice scoffed at that, noting that these broadcasts covered large swaths of Western Washington.

“We don’t want to have secret campaigns, but what’s the secret here?” said Justice Jim Johnson. “It’s open public expression.”

Attorneys for No New Gas Tax argue that forcing commentary to be reported as a campaign contribution would chill political speech.

“It would insert the government into the discussion of who gets on the air and what they get to talk about,” said Institute for Justice attorney Bill Maurer.

A particular worry, he and others said, is the state’s $5,000 limit for political contributions in the final three weeks of a campaign. That could be seen as a limit on how much commentators can say, he said. And that, the ACLU lawyers said, would be an unconstitutional restriction on free speech.

If Wickham’s ruling stands, the ACLU said, broadcasters would be likely to censor themselves to avoid expensive legal fights. And political opponents could “use campaign finance laws as a tool for distraction and harassment, with potentially devastating results for free speech.” They cited the case of a Rhode Island mayor – a year away from his next election – who was barred from hosting his own radio show.