State Supreme Court: Talk-radio hosts free to ... talk

OLYMPIA — Talk-radio host John Carlson can talk all he wants on the air about political causes — even ones he's involved with — without worrying whether his broadcasts must be reported as campaign donations.

That's the upshot of a unanimous ruling Thursday by the state Supreme Court in a case stemming from an unsuccessful effort two years ago to revoke a state gas-tax increase.

"It's a great day for freedom of speech in Washington and great day for freedom of speech in America," said Carlson, one of two hosts at the center of the legal dispute.

The court's 9-0 ruling was a sharp rebuke of several local governments — including Seattle — that brought the original case. In a concurrence opinion, Justices Jim Johnson and Richard Sanders called it an "abusive" attempt by the municipalities to silence political opponents.

Two years ago, Carlson and fellow KVI-AM host Kirby Wilbur waged an extensive on-air campaign to promote a citizen initiative to overturn a 9.5-cent-a-gallon gas-tax increase approved earlier that year by the Legislature.

Though the measure — Initiative 912 — failed, it sparked a court battle that drew nationwide attention.

In spring 2005, while supporters were gathering signatures for I-912, San Juan County and Seattle, Auburn and Kent filed a lawsuit against No New Gas Tax, the group backing the measure.

The municipalities hired a private law firm to handle the case. The firm, Foster Pepper, serves as bond counsel for the state and had a vested interest in defeating the initiative.

The local governments, which stood to gain from hundreds of millions of dollars in new gas-tax revenues for transportation projects, argued in their lawsuit that Carlson and Wilbur were directly involved with the I-912 campaign. Thus, they argued, the campaign should be required to report the on-air pitches by Carlson and Wilbur as "in-kind" campaign contributions.

Thurston County Superior Court Judge Chris Wickham agreed, a ruling that rattled the talk-radio industry and riled First Amendment advocates. When the case went to the state Supreme Court last June, groups ranging from the American Civil Liberties Union (ACLU) to the Cato Institute, a libertarian think tank, weighed in with legal briefs opposing Wickham's ruling.

To comply with Wickham's ruling, the I-912 campaign reported $20,000 worth of in-kind contributions from Fisher Communications, which owns KVI.

In its ruling Thursday, the Supreme Court said Wickham was wrong in declaring the KVI broadcasts were political contributions.

Since KVI was not controlled by the I-912 campaign, Justice Barbara Madsen wrote for the court, Wilbur's and Carlson's on-air solicitations fell within the media exemption, even if the hosts "acted at the behest" of the I-912 campaign.

The court also revived a countersuit filed by the campaign, accusing the municipalities of trampling its First Amendment free-speech and free-association rights.

The Institute for Justice, a libertarian public-interest law firm representing the No New Gas Tax group, plans to "vigorously pursue" its countersuit and seek reimbursement for legal costs, said William Maurer, director of the institute's Washington chapter.

Michael Vaska, a private attorney from Seattle who was hired to represent the cities and counties in the case, said he was disappointed at the court's interpretation of the media exemption. But, he said, it remains an unresolved dispute that will flare up again in other states.

"It's an important issue," Vaska said. "Where do you draw the line?"

Seattle Times reporter Sharon Pian Chan contributed to this story.

Ralph Thomas: 360-943-9882 or rthomas@seattletimes.com