Washington Supreme Court Upholds Talk Show Hosts’ Right to Free Speech

In San Juan County, et al v. No New Gas Tax, the Washington Supreme Court upheld the right of two Seattle radio talk-show hosts to comment about campaign issues on the air.¹ In its unanimous 9-0 decision, the supreme court ruled that KVI radio hosts John Carlson and Kirby Wilbur’s on-air support for an anti-gas tax initiative did not run afoul of campaign finance laws. 

Facts Leading to Lawsuit

In 2005, the Washington Legislature enacted a controversial 9.5-cents-a-gallon gas tax. Wilbur and Carlson, two popular conservative talk-show hosts, opposed the new tax on their radio programs. The hosts also actively supported Initiative 912 (I-912), the ballot measure brought by opponents of the gas tax to repeal the law. 

Carlson and Wilbur spent considerable time during their morning and evening radio shows encouraging listeners to contribute to the campaign. They also urged their listeners to sign and circulate the initiative, so that it qualified for the fall ballot. Although supporters of the initiative garnered enough signatures to qualify it for the fall election, I-912 was eventually defeated by the voters.

During the beginning stages of the initiative process, the cities of Seattle, Kent, Auburn, and San Juan Island County filed a complaint against the No New Gas Tax (NNGT) campaign. The local governments alleged that the NNGT campaign violated public disclosure provisions under Washington’s Fair Campaign Practices Act (FCPA).² Specifically, the municipalities alleged that the NNGT campaign failed to report in-kind contributions from Fisher Communications, the corporation that owns the radio station.

According to the local governments, the NNGT campaign received free advertising from Carlson and Wilbur’s radio shows. Therefore, the municipalities sought an injunction to prevent the campaign from receiving further in-kind contributions until it reported the contributions to the Public Disclosure Commission — the state commission overseeing elections. 

Trial Court Decision

The Thurston County Superior Court (trial court) granted the municipalities’ preliminary injunction. The trial court ruled that the NNGT campaign received contributions of free air time for political advertising in support of I-912.³ The trial court further ruled that Fisher Communications was required to disclose the value of Carlson’s and Wilbur’s on-air contributions to the Public Disclosure Commission.⁴

The NNGT campaign appealed the ruling and filed an emergency stay, arguing that the injunction would limit the radio hosts’ ability to speak about the initiative. According to Fisher Communications’ vice-president, since Washington law limits in-kind contributions to $5,000 three weeks prior to the election, the practical effect of the ruling was that the hosts would no longer be able to speak about the initiative on the air.⁵ The radio feared that allowing the hosts to continue speaking about the I-912 campaign would subject the radio station to prosecution for violating campaign finance laws.⁶

The NNGT campaign proceeded to file fourteen counterclaims against the prosecutors, alleging violations of the campaign officials' civil rights. The trial court dismissed the counterclaims. 

In its ruling, the trial court found that Carlson and Wilbur were principals of the NNGT campaign; that the hosts intentionally promoted the campaign on the air; and that the on-air discussion of I-912 had value to the NNGT campaign similar to advertising that could be purchased off the air.⁷ According to the trial court, forcing the radio show hosts to report the value of their discussions would not “in any way” restrict their on-air speech.⁸

Unanimous Supreme Court Reversal

In a unanimous decision, the Washington Supreme Court reversed the trial court. The Court ruled that Wilbur’s and Carlson’s on-air discussion of I-912 was protected speech under the FCPA. 

The Supreme Court began by analyzing Washington’s FCPA. Specifically, the court looked to the statute to determine what constituted a “contribution” and determined that the hosts’ on-air speech fell within the statute’s media exemption. 

The FCPA exempts from the definition of “contribution” any “news item, feature, commentary, or editorial in a regularly scheduled news medium… by a person whose business is that news medium, and that is not controlled by a candidate or a political committee.”⁹

The prosecutors argued that media exemption did not apply because the radio broadcasts were “controlled” by a political committee due to the radio hosts’ role as “principals” of the NNGT campaign. The court rejected this argument. 

According to the justices, the applicability of the media exemption did not turn on the radio hosts’ relationship with the campaign. Instead, the question was whether the news medium — in this case, the radio station — was controlled by a political committee, not whether a political committee authored the content of the particular communication. The court further noted that “[a]s with the federal exemption, ‘control’ does not change from hour to hour, depending on who may be hosting a particular radio program.”¹⁰

Thus, according to the Washington Supreme Court, the hosts’ on-air support for the initiative easily fell within the exemption, regardless of whether Carlson or Wilbur “acted at the behest of NNGT or solicited votes and financial support for the initiative campaign.”¹¹

Because the Washington Supreme Court ruled in favor of the NNGT campaign based on the statute, the court refused to address whether disclosure requirements of the FCPA were unconstitutional as applied to the NNGT.¹²

Justice Jim Johnson’s Concurrence

In a strongly written concurring opinion, Justice Jim Johnson—joined by Justice Richard Sanders—rebuked the local governments for bringing the lawsuit. In his opening sentence, Justice Johnson stated that “[t]oday we are confronted with an example of abusive prosecution by several local governments.”¹³

In addition, Justices Johnson and Sanders opined that the municipalities brought the lawsuit for the purpose of “restricting or silencing political opponents.”¹⁴ 

The concurring justices further argued that the local governments expected millions of dollars from the gas tax, and that the law firm they hired stood to potentially benefit financially from its role as a bond counsel to the state of Washington.¹⁵ 

The justices also explained that the injunction granted by the trial court was a “chilling of speech” because of the substantial risk that the radio hosts’ continued commentary would lead to excessive financial sanctions and potential prosecution. 

The justices ended their concurring opinion by admonishing the prosecutors for bringing the lawsuit. According to Justices Johnson and Sanders, the lawsuit appeared as a calculated way to “muzzle media support of the NNGT initiative” and “was offensive to the notion of free and open debate.”¹⁶ Thus, according to the justices, the NNGT campaign should be awarded attorneys’ fees on remand. 

Conclusion

The Washington Supreme Court’s decision appears to be significant not only for Washington, but for other states with similar laws. (Many states have campaign finance laws similar to Washington’s, which are patterned after federal law).

*Andy Cook is the President of the Puget Sound Federalist Society, Lawyers’ Chapter in Seattle and is Legal Counsel for the Building Industry Association of Washington. 

 

Endnotes

1 --- P.3d ---, 2007 WL 1218207. 

2 Revised Code of Washington (RCW) chapter 42.17. 

3 No New Gas Tax, 2007 WL 1218207 *3. 

4 Id. 

5 Id. 

6 Id. 

7 2007 WL 1218207 *4. 

8 Id. 

9 RCW 42.17.020(14)(a)(iv). 

10 2007 WL 1218207 *7 

11 Id. at *10. 

12 Id. 

13 Id. at *11. 

14 Id. 

15 Id. 

16 Id. at *15.

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