Court exempts radio hosts from campaign law

OLYMPIA – A unanimous state Supreme Court ruled Thursday that two radio talk show hosts who used airtime to support a gas-tax rollback initiative they launched were not required to report their commentary as an in-kind political contribution.

The court also reinstated a countersuit filed by the No New Gas Tax campaign against the local governments that initially sued: San Juan County and the cities of Auburn, Kent and Seattle.

“This is a victory for free speech and a free press in Washington state,” said William Maurer, executive director of the Institute for Justice Washington chapter, who argued the case. “Washingtonians can rest assured that the news and voice and commentary they hear has not been censored or restricted by the government in any way.”

The ruling overturns a 2005 ruling by Thurston County Superior Court Judge Chris Wickham that talk show hosts John Carlson and Kirby Wilbur at Seattle radio station KVI were key organizers and promoters of Initiative 912. The ballot measure was aimed at heading off a four-step, 9.5-cent-a-gallon increase in the state gasoline tax.

The judge said the pair used their shows to launch the campaign, soliciting contributions and volunteers. He said the air time amounted to an in-kind contribution and required that the value be reported to the state Public Disclosure Commission.

State law says editorials, commentaries and other types of news reports are not considered contributions.

“Under the PDC’s regulation, the media exemption applies to coverage of a candidate or ballot measure that occurs during the ‘content’ period of a broadcast, as opposed to the commercial advertising period, when payment is normally required,” Justice Barbara Madsen wrote for the court. “However, the mere fact that a broadcast has value to a campaign, or includes solicitation of funds, votes, or other support, does not convert ‘commentary’ into ‘advertising’ when it occurs during the content portion of a broadcast for which payment is not normally required.”

Mike Vaska, the lead attorney representing the local governments, argued the case was never an issue of free speech. He said that Carlson and Wilbur crossed the line of free speech by running a campaign from behind a microphone.

“They were the campaign,” he said. “Had they not been running the campaign and had no connection, you don’t have any disclosure requirement. They were doing more than talking about the issue, they were asking for money.”

Wilbur, Carlson and the station argued their role with the initiative was within the normal bounds of radio fare.

The high court agreed.

“The uncontroverted facts establish that the radio station involved here is a regular media entity that is not controlled by a candidate or political committee,” Madsen wrote. “The radio station was exercising one of its core media functions in broadcasting Wilbur’s and Carlson’s talk shows.”

After the Thurston County ruling, the No New Gas Tax campaign had reported the show’s value as a $20,000 in-kind contribution from the Seattle station’s owner, Fisher Broadcasting. The campaign also reported its calculation of what various newspaper accounts were worth, acknowledging that the numbers had to be made up.

PDC Assistant Director Doug Ellis said his agency was reviewing the decision, and that the commission would be briefed by its attorney at a meeting Wednesday.

Carlson called the decision “a swift rebuke to those who want to use campaign finance laws to silence political opinions they disagree with.”

In his concurring opinion, Justice Jim Johnson agreed, writing that “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.”