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April 26, 2007

Supreme Court says radio talk not a political donation

Posted by David Postman at 8:46 AM

The state Supreme Court said in an opinion released this morning that KVI talk show hosts did not need to report their advocacy for an anti-gas tax campaign as an in-kind political contribution. And the court has reinstated a countersuit filed by the No New Gas Tax (NNGT) campaign against local governments that initially sued.

We hold that RCW 42.17.090 did not require NNGT to disclose the value of KVI's radio broadcasts supporting the initiative campaign as an in-kind contribution. The statutory media exemption, RCW 42.17.020(15)(b)(iv), 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. We reverse the order dismissing NNGT's counterclaims and remand to the trial court for further proceedings consistent with this opinion.

The opinion was unanimous. The majority opinion was written by Justice Barbara Madsen and signed by Chief Gerry Alexander and justices Tom Chambers, Charles Johnson, Susan Owens, Mary Fairhurst and Bobbe Bridge. Justices Jim Johnson wrote a concurrence, which Justice Richard Sanders also signed, saying:

Today we are confronted with an example of abusive prosecution by several local governments. San Juan County and the cities of Seattle, Auburn, and Kent (hereinafter Municipalities) determined to file a legal action ostensibly for disclosure of radio time spent discussing a proposed initiative. This litigation was actually for the purpose of restricting or silencing political opponents and was quickly dismissed after the filing deadline for the initiative.

Johnson and Sanders say the case showed a "disregard for core freedoms of speech and association."

The case began with a lawsuit filed against the campaign trying to repeal a 9.5-cent gas tax increase. The suit was filed by San Juan County and the cities of Seattle, Auburn and Kent.

In 2005 Thurston County Superior Court Judge Chris Wickham ordered that KVI hosts John Carlson and Kirby Wilbur to report their on-air support as in-kind contributions from their employer, Fisher Communications, which owns KVI.

Wickham also dismissed a countersuit filed by the initiative campaign, saying the local governments were stepping on the radio hosts First Amendment rights.

More from Madsen:

The distinction between "political advertising" and "commentary" may be relevant in deciding whether a media entity is performing a legitimate press function. However, the distinction does not turn on the content of the communication. In accordance with its statutory authority,11 the PDC has further defined "political advertising" as it relates to the media exemption:

Political advertising does not include letters to the editor, news or feature articles, editorial comment or replies thereto in a regularly
published newspaper, periodical, or on a radio or television
broadcast where payment for the printed space or broadcast time is
not normally required.


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. Hence, if a radio station makes available to a campaign broadcast time for which it ordinarily receives a fee, i.e., commercial time, an in-kind contribution would result. 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.

Times reporter Sharon Pian Chan spoke to Carlson, who said:

"It's a great day for freedom of speech in Washington and great day for freedom of speech in America. I am stunned that it was 9-nothing. I thought we would win but rarely do you see the court come down 9-nothing.

"There was a lot at stake if this decision had been upheld. Basically radio commentary would have become de facto advertising and free speech would have been commercial speech."

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