Been meaning to bring this important story to your attention:

Last week, a Thurston County, Washington, judge ruled that on-air editorial comments by two of my old friends, Seattle talk hosts Kirby Wilbur and John Carlson of KVI-AM, are considered in-kind campaign contributions, subject to reporting under state disclosure laws.

Brian Maloney, a former talk show host at KVI and blogger at The Radio Equalizer, has been covering the reaction from the radio industry and exploring the broader implications of the ruling, as well as political double standards. See here and here.
An excerpt from the Seattle Post-Intelligencer’s coverage:

The ruling has attracted attention beyond Washington’s borders. “It is absolutely stunning in terms of the philosophical and theoretical questions it raises,” says Michael Harrison, publisher of the talk-radio trade magazine Talkers; Harrison adds that he’s not aware of a similar case elsewhere in the country. In Harrison’s view, if no money changed hands then there’s no contribution.

“Otherwise you can subject it to taxes, limits on contributions, all kinds of things that get in the way of free speech. To put a value on it is a very dangerous precedent.” (In response to the ruling and to meet a deadline, the initiative campaign estimated the value of the hosts’ work at $20,000).

Brian Maloney, a former Seattle-area talk-show host who now runs a national blog on talk-radio issues, raises this question: If talk-radio comments count as political contributions, why not newspaper editorials? Or Web sites?

Adds Maloney:

[Or] the guy in the park with a megaphone? The campaign volunteers doorbelling or leafletting? In the story, a KVI/KOMO manager notes that a KOMO-TV commentator took the other side of the gas tax repeal issue, in editorial commentaries. Why aren’t his statements considered a contribution to that campaign?

Surprisingly, the Seattle Times (whose liberal editorial board and publisher have had frequent feuds with conservative KVI) weighs in on Wilbur and Carlson’s side in a strongly-worded editorial today:

Judge Christopher Wickham of Thurston County Superior Court trod dangerously on the First Amendment last week.

He ruled that Kirby Wilbur and John Carlson of KVI Radio had pushed the gas-tax rollback initiative so zealously on the air that it amounted to advertising. Therefore, he ruled, the campaign had to report their support as a political contribution.

The campaign duly estimated the value of Wilbur’s and Carlson’s support at $10,000 each for the month of May, and reported it to the government.

See what is being done here. The judge is following a simple syllogism:

All political contributions may be regulated;
Speech is a political contribution;
Therefore, speech may be regulated.

A supporter of the ruling might say the regulation only requires disclosure, and that the people have a right to know about the activities of Wilbur and Carlson (even though the people can find out by tuning in to KVI-AM). But the government’s assertion of power implies more than disclosure.

Though state law sets no spending limits on initiative campaigns, it does set a limit of $1,375 per contributor to state election campaigns. Suppose, then, that Dino Rossi ran for governor again, that Wilbur and Carlson strongly supported him, and that the Rossi campaign were required to report it as a $20,000 in-kind contribution by Fisher Broadcasting.

In that case, Fisher would have violated the law. And how? By speaking on political topics during an election campaign.

Two years ago, when the federal campaign-finance law reached the U.S. Supreme Court, dissenting justices Antonin Scalia and Clarence Thomas warned that something like this would happen. We doubted it; it seemed clear to us that the law applied to ads, not editorial content. We thought 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. The losers need to appeal it and the appellate courts need to reverse it.

Stefan Sharkansky says Judge Wickham should be denied another term on the bench.

The sources of the problem–as political bloggers who’ve been fighting similar regulatory encroachment battles on the online front know–go higher up than that, of course. Their names rhyme with McGain and Feincold.

Looks like talk radio needs a Mike Krempasky and an industry free speech coalition. Quick.

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