04/27/2007: "Unanimous Against SJC In Statewide Lawsuit"

SJC Prosecutor Randy Gaylord’s decision to join in with other prosecutors from Kent, Auburn and Seattle in a lawsuit against Yes912.com was successful in the lower courts, but when the State Supreme Court reviewed, they came back with a unanimous ruling against San Juan County, and also failed to award any attorney fees to the County.

William Maurer of the Institute for Justice, in their official release, called the Supreme Court decision “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”.

The lawsuit was rather clever in it’s argument, but had the potential to have major consequences to free speech issues. Issues that would most decidedly have reached the US Supreme Court, had not the State Supreme Court sent it back to the lower court “for further proceeding consistent with” their decision that State Law “excludes from the definition of ‘contribution’ political advocacy for or against a political campaign by the hosts of a regularly scheduled talk show, broadcast by a radio station that is not controlled by a candidate or political committee”.

According to Gaylord’s office: ”The case was filed when the campaign-which was started by two KVI talk radio hosts-failed to identify the source of $70,000 in cash contributions. The trial judge ordered the campaign to disclose the source of the cash and, in addition, the value of any in kind contributions, including any air time used to ask for money or other support for the campaign”.

Justice Barbara Madsen wrote the Court’s opinion, and clearly saw the free press issues involved by noting the importance of protecting the role of the press to inform, educate and offer criticism.

Gaylord and the others involved in the case came up with the idea that if a radio talk show openly supported -in this case- an issue (“political advocacy”), then that that was an “in-kind contribution”, and as such, was subject to state finance regulations.

The lower court agreed with Gaylord, and ordered the No New Gas Tax campaign to disclose the names of the contributors and $20,000 of “in kind contributions” from Fisher Broadcasting, the owner of the radio station that broadcast the host show that was in the center of the lawsuit As a result of the court order, a counterclaim was filed that the order was a violation of free speech..

The lower court dismissed the counterclaim, and so off to the Supreme Court they went. That seems to have been a wise move on the part of Yes912, at least based on how Justice Barbara Madsen's opinion, as quoted by the Institute for Justice, that “exempting the media from campaign finance regulations legitimately protects the press’s unique role in ‘informing and educating the public, offering criticism, and providing a forum for discussion and debate.”

Justice Madsen was not alone in making clear and pointed statements about the case. Justice Jim Johnson in a concurring opinion stated: “Today we are confronted with an example of abusive prosecution by several local governments. This litigation was actually for the purpose of restricting or silencing political opponents.”

Brett Bader of Yes912 stated in there own press release that “We’re delighted the court vindicated our right to speak, but we never should have had to go to court simply to defend that right”, and added “All along, we’ve said this prosecution was simply the political establishment using campaign finance regulations as a tool to hammer political opponents with litigation.”

But Gaylord, who brought the enforcement action that was the subject of the appeal, believes the “case presents an important public disclosure issue that requires a balancing of the public interests served by campaign finance regulations and the interests of media organizations,"

In his press release, Gaylord added: "The question is where to draw the line between campaigning and commentary," adding "The Supreme Court rejected the line previously drawn by the Public Disclosure Commission, the trial court, and even Fisher Broadcasting," Gaylord acknowledged “The Supreme Court said disclosure is required under the statute only if the radio station was controlled by a political committee.”

One thing both courts did agree on, was that San Juan County and the other cities involved in the case would not be getting any money back. The last sentence in the Supreme Court decision is the following: “We affirm the trial court's denial of attorney fees to San Juan County”.