Wes Vernon
The enemies of free speech are on the march (Part 2)
By Wes Vernon
Ever since the U.S. Supreme Court upheld the anti-free speech McCain-Feingold so-called Campaign Finance "Reform" Law, it was only a matter of time before there would be a move somewhere to silence someone during an election campaign.
That is exactly what has happened in the Seattle area. The statute in this case is Washington State's Public Disclosure Law.
Judge Chris Wickham of Thurston County Superior Court has twice ruled against radio talkshow hosts Kirby Wilbur and John Carlson on KVI-AM Seattle, who spoke out in favor of an initiative to repeal a new whopping 9.5-cents-per-gallon gas tax increase that the state legislature had enacted. The rollback initiative — I-912 — is to be decided by Washington State voters November 8. Judge Wickham ruled that the radio hosts' on-air advocacy during the initiative's signature-gathering period was an "in kind" contribution and amounted to free advertising for I-912.
The judge's remarkable decision, of course, has implications far beyond the borders of that state or what might be called its mini-McCain-Feingold law. If a judge can effectively tell radio commentators to be silent on this issue or see their cause penalized because they spoke out in favor of it, what's to stop a federal court at some point from silencing radio talkshow hosts who speak out for or against political candidates 30 days before a primary or 60 days before a general election as stipulated in the McCain-Feingold's limits on advertising by "independent" groups?
The genesis of that provision was Senator John McCain's outrage at advertising by Club for Growth that went after him during his failed presidential bid in 2000. Now because of the senator's personal snit, all Americans stand in danger of being unconstitutionally muzzled in their freedom to speak out during critical days of a campaign.
These so-called campaign "reform" laws were supposed to "keep the money out of politics." Remember?
Well, here's how the Washington State law is "keeping the money out of politics." According to one AP report, Microsoft Chairman Bill Gates and his CEO Steve Ballmer each gave $100,000 to the campaign against the repeal. They and other moneybags have helped pump more than $2 million into the effort to keep the steep gas tax hike on the books. They include Boeing, the Washington State Labor Council, and the Seattle Mariners. By contrast, backers of I-912 raised about $225,000 mostly through small contributions — averaging about $20, according to one I-912 advocate.
Yet, prosecutors went to bat for the poor little picked-on campaign to keep socking motorists with the stiff tax (on top of the sky-high prices at the pump endured by all Americans). They dragged into court the initiative-backers and accused them of getting "in-kind" contributions from those two mean old talk show hosts — contributions estimated at $10,000 apiece, or $20,000.
In his ruling, the judge said — somewhat disingenuously in the view of some I-912 advocates — that his decision did not contradict the state law. The statute says a contribution "does not include a "news item, feature, commentary, or editorial in a regularly scheduled news medium that is of primary interest to the general public, that is a news medium controlled by someone whose business is that news medium, and that is not controlled by a candidate or a political committee."
Brian Maloney, who critiques talk radio, does not buy the judge's rationale. He writes if talk-radio comments count as political contributions, why not newspaper editorials or web sites? Where does it stop?
Brett Bader, spokesman for the I-912 initiative, says Wilber and Carlson never ran or "controlled" the campaign, notwithstanding Judge Wickham's ruling to the contrary. Wilber and Carlson say they will continue talking about this issue on the air when appropriate. That sounds like a challenge to the judge to toss them into the slammer if he doesn't like it. It is tempting to encourage them to take it to that limit, but that would be like saying "Let's you and them fight." Only they can decide. They do seem bent on exercising their First Amendment rights.
Moreover, Dennis Kelley, program director KVI's sister station KOMO-AM — also owned by Fisher Broadcasting — noted that station's commentator Ken Schram criticized Wilber and Carlson for supporting the gas tax repeal. Does the court consider that an "in-kind" contribution to Keep-Washington-Rolling, the Gates-backed effort to defeat the initiative?
As of this writing, the I-912 backers hoped to appeal to the State Supreme Court. Perhaps the story advances to that stage by the time you read this.
Whatever the ultimate outcome, the issue here is the most basic underpinning of our Constitutional freedoms — the right of free speech. The First amendment says "Congress shall make no law" — no law — "abridging the freedom of speech or of the press."
No commentator or talkshow host on either side of any issue or candidate whose fate is being decided by the voters should have to worry about being hauled before a judge for taking sides, barring content that is libelous or defamatory — in which case other laws that have nothing to do with First Amendment freedoms are applicable.
This space has warned repeatedly of the threat to free speech that comes with efforts to shut people up when election season rolls around. This is frightening. The liberal Seattle Times, no friend of the conservative KVI talkers, recalled that when McCain-Feingold reached the Supreme Court, "dissenting justices Antonin Scalia and Clarence Thomas warned that something like this would happen."
"We doubted it," the Times editorialists wrote following Judge Wickham's original decision. "It seemed clear to us that the law applied to ads, not editorial content. We thought [Justice] Thomas was over the top when he said campaign-finance law was leading toward 'outright regulation of the press.' Judge Wickham has made a step toward just that. It is a dangerous unconstitutional ruling."
Newspapers that provided editorial cheering sections for muzzling others may now realize that they are not immune from attacks on basic Constitutional rights.
© Wes Vernon
Ever since the U.S. Supreme Court upheld the anti-free speech McCain-Feingold so-called Campaign Finance "Reform" Law, it was only a matter of time before there would be a move somewhere to silence someone during an election campaign.
That is exactly what has happened in the Seattle area. The statute in this case is Washington State's Public Disclosure Law.
Judge Chris Wickham of Thurston County Superior Court has twice ruled against radio talkshow hosts Kirby Wilbur and John Carlson on KVI-AM Seattle, who spoke out in favor of an initiative to repeal a new whopping 9.5-cents-per-gallon gas tax increase that the state legislature had enacted. The rollback initiative — I-912 — is to be decided by Washington State voters November 8. Judge Wickham ruled that the radio hosts' on-air advocacy during the initiative's signature-gathering period was an "in kind" contribution and amounted to free advertising for I-912.
The judge's remarkable decision, of course, has implications far beyond the borders of that state or what might be called its mini-McCain-Feingold law. If a judge can effectively tell radio commentators to be silent on this issue or see their cause penalized because they spoke out in favor of it, what's to stop a federal court at some point from silencing radio talkshow hosts who speak out for or against political candidates 30 days before a primary or 60 days before a general election as stipulated in the McCain-Feingold's limits on advertising by "independent" groups?
The genesis of that provision was Senator John McCain's outrage at advertising by Club for Growth that went after him during his failed presidential bid in 2000. Now because of the senator's personal snit, all Americans stand in danger of being unconstitutionally muzzled in their freedom to speak out during critical days of a campaign.
These so-called campaign "reform" laws were supposed to "keep the money out of politics." Remember?
Well, here's how the Washington State law is "keeping the money out of politics." According to one AP report, Microsoft Chairman Bill Gates and his CEO Steve Ballmer each gave $100,000 to the campaign against the repeal. They and other moneybags have helped pump more than $2 million into the effort to keep the steep gas tax hike on the books. They include Boeing, the Washington State Labor Council, and the Seattle Mariners. By contrast, backers of I-912 raised about $225,000 mostly through small contributions — averaging about $20, according to one I-912 advocate.
Yet, prosecutors went to bat for the poor little picked-on campaign to keep socking motorists with the stiff tax (on top of the sky-high prices at the pump endured by all Americans). They dragged into court the initiative-backers and accused them of getting "in-kind" contributions from those two mean old talk show hosts — contributions estimated at $10,000 apiece, or $20,000.
In his ruling, the judge said — somewhat disingenuously in the view of some I-912 advocates — that his decision did not contradict the state law. The statute says a contribution "does not include a "news item, feature, commentary, or editorial in a regularly scheduled news medium that is of primary interest to the general public, that is a news medium controlled by someone whose business is that news medium, and that is not controlled by a candidate or a political committee."
Brian Maloney, who critiques talk radio, does not buy the judge's rationale. He writes if talk-radio comments count as political contributions, why not newspaper editorials or web sites? Where does it stop?
Brett Bader, spokesman for the I-912 initiative, says Wilber and Carlson never ran or "controlled" the campaign, notwithstanding Judge Wickham's ruling to the contrary. Wilber and Carlson say they will continue talking about this issue on the air when appropriate. That sounds like a challenge to the judge to toss them into the slammer if he doesn't like it. It is tempting to encourage them to take it to that limit, but that would be like saying "Let's you and them fight." Only they can decide. They do seem bent on exercising their First Amendment rights.
Moreover, Dennis Kelley, program director KVI's sister station KOMO-AM — also owned by Fisher Broadcasting — noted that station's commentator Ken Schram criticized Wilber and Carlson for supporting the gas tax repeal. Does the court consider that an "in-kind" contribution to Keep-Washington-Rolling, the Gates-backed effort to defeat the initiative?
As of this writing, the I-912 backers hoped to appeal to the State Supreme Court. Perhaps the story advances to that stage by the time you read this.
Whatever the ultimate outcome, the issue here is the most basic underpinning of our Constitutional freedoms — the right of free speech. The First amendment says "Congress shall make no law" — no law — "abridging the freedom of speech or of the press."
No commentator or talkshow host on either side of any issue or candidate whose fate is being decided by the voters should have to worry about being hauled before a judge for taking sides, barring content that is libelous or defamatory — in which case other laws that have nothing to do with First Amendment freedoms are applicable.
This space has warned repeatedly of the threat to free speech that comes with efforts to shut people up when election season rolls around. This is frightening. The liberal Seattle Times, no friend of the conservative KVI talkers, recalled that when McCain-Feingold reached the Supreme Court, "dissenting justices Antonin Scalia and Clarence Thomas warned that something like this would happen."
"We doubted it," the Times editorialists wrote following Judge Wickham's original decision. "It seemed clear to us that the law applied to ads, not editorial content. We thought [Justice] Thomas was over the top when he said campaign-finance law was leading toward 'outright regulation of the press.' Judge Wickham has made a step toward just that. It is a dangerous unconstitutional ruling."
Newspapers that provided editorial cheering sections for muzzling others may now realize that they are not immune from attacks on basic Constitutional rights.
© Wes Vernon
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