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A fee for free speech?

By Steve Lilienthal
web posted August 18, 2005

Better watch what you say. Talk is not cheap. Not when judges rule that monetary value be placed upon radio talk show content. A believe-it-or-not case in Washington State should be taken as a warning by conservative talk radio. The case could mean that those who dislike Rush Limbaugh, Sean Hannity, Laura Ingraham and Janet Parshall could try to tame the medium that lets Conservatives air messages unfiltered by Liberal bias.

Here are the facts of the case, San Juan County v. No New Gas Tax. KVI-AM Radio in Seattle, owned by Fisher Broadcasting, features talk-show hosts John Carlson and Kirby Wilbur, who vocally supported Initiative 912 (I-912), which will be on the November 2005 ballot. The initiative would repeal a 9.5 per cent increase in the gasoline tax enacted by the Washington State Legislature. However, because the Carlson-Wilbur effort included posting information on the radio station website, prosecutors for San Juan County, and the Cities of Kent, Auburn and Seattle argued that the effort extended beyond mere talk, accusing KVI and the talk-show hosts Carlson and Wilbur of "failure to disclose the significant in-kind contributions received from Fisher."

The Institute for Justice Washington Chapter on behalf of No New Gas Tax last week filed an answer to the Prosecutors' complaint and a counterclaim against the Prosecutors. IJ-WA and NNGT are challenging the Prosecutors' lawsuit as "an unprecedented and danger assault on the free speech and free association guarantees of both the United States and Washington constitutions." Their action seeks to prevent the Prosecutors from enforcing restrictions upon what they assert are NNGT's fundamental constitutional rights.

Thurston County Superior Court Judge Christopher Wickham ruled ". . . In the area of speech, requiring disclosure of in-kind contributions for media time allocated to campaigning for a political campaign will not restrict that campaigning, but merely require it to be disclosed to the general public, much the same as any other valuable contribution."

Were Judge Wickham's ruling upheld, would it mean that a radio station or a newspaper must count each second of air time given to expounding a clear position on a political initiative or a candidate? Would it mean a newspaper must count the inches on its editorial page when it supports a candidate or an initiative? What would be the penalty for failing adequately to report what is said or printed? Suppose a newspaper editorial generally supported one candidate but conceded that the opponent had a stronger stand on one issue. What then? That might keep folks at the state election commission tossing and turning.

Ironically, Fisher Broadcasting also owns KOMO-AM. Station commentator Ken Schram had been critical of the support Wilbur and Carlson offered to Initiative 912. That led Dennis Kelly, Program Director for KVI and KOMO, to wonder in a Seattle Post-Intelligencer story if Schram's comments should be counted as an in-kind contribution to the committee opposing the gas tax initiative. (Fisher Broadcasting has stood tall behind Wilbur and Carlson. It deserves credit for not going "wobbly.")

Justice Clarence Thomas, in his dissenting opinion in the United States Supreme Court case that upheld the McCain-Feingold campaign finance law, asserted, ". . . The chilling endpoint of the Court's reasoning is not difficult to foresee: outright regulation of the press. . ." In his viewpoint, ". . . Media corporations are influential. There is little doubt that the editorials and commentary they run can affect elections. Nor is there any doubt that media companies often wish to influence elections. One would think that the New York Times fervently hopes that its endorsement of Presidential candidates will actually influence people. What is to stop a future Congress from determining that the press is ‘too influential,' and that the ‘appearance of corruption' is significant when media organizations endorse candidates or run ‘slanted' or ‘biased' news stories in favor of candidates or parties? Or, even easier, what is to stop a future Congress from concluding that the availability of unregulated media corporations creates loopholes that allow for easy ‘circumvention' of the limitations of the current campaign finance laws? . . ."

Thomas' last footnote in that opinion cites Blackstone: "The liberty of the press is indeed essential to the nature of a free state."

The Northwest Progressive Institute, which offers a "liberal perspective" on politics, demonstrated the politics that lay behind the Washington State Superior Court ruling. Fisher Broadcasting executives said the talk-show hosts who favored the gas tax repeal were discussing issues and urging action. "Oh, they're doing much, much more than that. They are attempting to reverse legislative process and change public policy," the Institute emphasized. The Seattle Post-Intelligencer has run a number of editorials opposing Initiative 912.

The Northwest Progressive Institute made it appear as if the radio talk-show hosts urged clandestine terrorist action, but ignored the fact that the initiative was a tool used by progressive reformers of the early 1900s to keep powerful special interests and institutions in line. One of those powerful institutions is the government. Would the Northwest Progressive Institute urge a newspaper editorial page or radio talk-show host to avoid mentioning an initiative to reverse a tax cut it did not like? Of course not. It's worth asking Liberals and liberal organizations, such as the Northwest Progressive Institute, if there is a reason why those editorials should not be listed as in-kind contributions to the anti-912 forces.

The Left wants it both ways. For decades we have endured the promotion of many liberal causes and the omission of conservative causes by media controlled by Liberals. Now that Conservatives have their own outlets and talk-show hosts and writers Liberals suddenly want to crack down on media freedom.

It's a two-way street. Count me as a supporter of Wilbur and Carlson. I'd certainly advise anyone living in Washington State to take a serious look at the initiative they support. [I've just made an in-kind contribution to the campaign.]

If you believe speech isn't free, then sue me. Speech should be free. We do not need McCain-Feingold or a judge in Washington State putting a price tag upon speech and, as a logical extension, attempting to regulate speech.

Steve Lilienthal is a policy analyst at the Free Congress Foundation.


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