Last week was a good week for liberty, in particular for our First Amendment freedom of (political) speech.
On Thursday, a unanimous Washington State Supreme Court ruled (in a case called San Juan County v. No New Gas Tax) that radio talk show hosts expressing an opinion on a ballot issue did not count as â€œin-kind contributionsâ€, which would have required the radio stations to offer equal time to groups on the other side of the issue. (You can read a news story about the case HERE and the press release from the Institute for Justice which represented the No New Gas Tax campaign HERE. You can also read IJâ€™s background information on the case and the issues HERE.)
In particular, two radio show hosts were actively campaigning against a new 9.5 cent per gallon gas tax in Washington. Groups supporting the tax, including state and local governments which stood to take hundreds of millions of dollars from Washington residents, tried to muzzle the radio hosts by saying their talk against the tax required the anti-tax campaign to register the radio talk as contributions to their campaign, thus limiting the amount of real contributions they could then take in.
Shockingly, in the first trial over the issue, a county judge ruled against the radio stations and the anti-tax campaign, and they were forced to book an in-kind contribution in their records, despite it being absolutely obvious that the law is a violation of our First Amendment rights.
Thankfully, the State Supreme Court said the county judge was wrongâ€¦and they said so in dramatic and unanimous fashion. You can read the opinion here:
Even more interesting is the concurring opinion found here:
In this opinion, Justices James M. Johnson and Richard B. Sanders make they key issue much clearer than the primary opinion does:
This litigation was actually for the purpose of restricting or silencing political opponents and was quickly dismissed after the filing deadline for the initiative. The disregard for core freedoms of speech and association in this case, and resulting interference with these constitutional rights, is described in the majority. The Municipalities augmented their prosecuting attorneys and legal staff with an interested private law firm to engage in this prosecution of No New Gas Tax (NNGT), in a transparent attempt to block filing of an initiative, which is also a constitutional right in Washington.
I concur with the majority’s holding construing the statute in a constitutional manner to not apply to the political speech of the defendants. I write separately to emphasize that the contrary positions of the Municipalities and court below resulted in infringing constitutional rights. Thus, the majority properly reverses and remands for further proceedings. At the least, this remand requires that NNGT receive reasonable attorney fees and trial costs.
The Municipalities involved expected millions of dollars from increased tax revenue if Initiative 912 (I-912) failed to qualify for the ballot. The private law firm would potentially derive financial benefit from its role as one state bond counsel and volunteered to help litigate against NNGT â€˜on behalf of the State of Washington.â€™
â€¦the chilling effect upon the exercise of First Amendment rights may derive from the threat of prosecution, and not just by the prospects of its success. Here, the injunction’s erroneous characterization of the commentary as an in-kind â€˜contributionâ€™ placed defendants in jeopardy of prosecution at a later date, and the only way to completely mitigate the risk was self-imposed silence.
Clearly, â€˜the First Amendment prohibits the State from silencing speech it disapproves, particularly silencing criticism of government itself. Threats of coerced silence chill uninhibited political debate and undermine the very purpose of the First Amendmentâ€™â€¦Prosecutors must not use the threat of a punitive lawsuit, amounting to an unconstitutional prior restraint on free speech, to block political opponents from exercising their constitutional rights.
In the instant case, it appears that the Municipalities’ prosecution of the case, and especially the preliminary injunction, was calculated to muzzle media support of the NNGT initiative. This behavior sought to keep the initiative from ballot qualification during the very limited window between passage of the disputed legislation and the initiative filing deadline.8 This lawsuit was not justified under the law (the majority so holds) and was offensive to the notion of free and open debate.
Much of the rest of the concurring opinion was explaining in detail (essentially to the court which they are remanding the case back to) why the NNGT initiative was entitled to receive attorneyâ€™s fees from the states and municipalities who had violated their constitutional free speech rights.
The initiative to overturn the gas tax proposed by the legislature failed despite the work by the radio hosts to fight for limited government and low taxes, and Washingtonians were saddled with the higher tax. Whether that result would have been different had the radio hosts and the NNGT campaign not been threatened and partially silenced by the very governments who stood to benefit from the new tax, we may never know. However, now that this ruling has passed, I hope that activists in Washington will try again to overturn the new tax and will make the results of this lawsuit clear, making the abusive bullying by government in order to take driversâ€™ money part of the issue.
Overall, a unanimous opinion in a liberal state like Washington is a great ruling for liberty and for the freedom of speech that our Federal constitution was most intended to protect, freedom of political speech.
The day before Washington issued this blow for liberty, the Supreme Court of the United States heard oral arguments in a similar case, Wisconsin Right to Life vs. Federal Election Commission. Wisconsin Right to Life was running issue ads about Democratsâ€™ threatened filibuster of President Bushâ€™s judicial nominees. The ads mentioned the two Senators, one of which was not on the ballot that year. The group fully intended their ads to trigger a lawsuit by attacking what they (rightly) believe is overly broad infringements on free speech rights by government interpretation of the Bipartisan Campaign Reform Act (â€œBCRAâ€), which would be better named the â€œMcCain-Feingold Incumbent Protection Actâ€. You can read the Wisconsin groupâ€™s press release announcing their ads and their intention to challenge the law HERE. And an excellent summary of the case can be found HERE.
The L.A. Times, among others watching the case, believes that the tone of the questioning on Monday hints at the Supreme Court ruling for Wisconsin Right to Life. We can only hope thatâ€™s true. There is an interesting quote from Justice Stephen Breyer who said “If we agree with you in this case, goodbye McCain-Feingold.” It sounds as if Chief Justice Roberts might be a little more â€œsquishyâ€ than weâ€™d like, as the LA Times reports that â€œhe was not convinced the broadcast ban should be struck down entirely.â€ That said I am still hopeful that a 5-Justice (or more) majority will substantially attack the heart of BCRA.
And at this link, you can both read and hear the oral arguments presented to the Court in the caseâ€™s first appeal in 2006. Itâ€™s 57 minutes long and fascinating, although it is not the latest arguments in the case. And, at the Supreme Court web site, at this link, you can read the transcript of Wednesdayâ€™s arguments: http://www.supremecourtus.gov/oral_arguments/argument_transcripts/06-969.pdf
A ruling in the case is expected in June. It represents a real opportunity for the Court to take its first step back toward protecting political speech, the type of speech that our Founders were most interested in protecting by writing the First Amendment.
Amazingly (or may not so amazingly), John McCain also filed a lawsuit against Wisconsin Right to Life to uphold his blatantly unconstitutional legacy. Indeed, while I donâ€™t hate John McCain, I believe that his primary role in passing a law which bans the mention of the names of candidates for Federal office within 60 days of an election is so anti-American, anti-liberty, and so reminiscent of the worst characteristics of dictatorships from Stalin to 1984â€™s â€œBig Brotherâ€, that he is supremely unfit to be President of the United States. (There are plentiful other reasons not to support him, but I donâ€™t need anything more than McCain-Feingold.)
John McCain once argued that negative campaign ads targeting candidates were basically just not polite and that candidates shouldnâ€™t be subjected to them. Given the effectiveness of negative ads and the huge election advantage held by incumbents to begin with, banning such ads is effectively making all but the worst incumbents invulnerable, making them effectively â€œSenators for Lifeâ€. BCRA is a law which Hugo Chavez would be proud to implement.
The Washington Times has a great Op-Ed on the case by former Federal Election Commission Bradley Smith, in which Smith says:
As Wisconsin Right to Life asserts, “A lost opportunity at the critical time is an opportunity lost forever.” And data show that McCain-Feingold freezes many groups out of the process at the most critical time. For one thing, it’s not as if Congress stops voting close to an election. Within the 60 days preceding the 2004 election, for example, there was a 156 percent increase in the number of House bills and resolutions introduced over the previous 60-day period. In recent years, within blackout periods, the House and Senate have voted on such high-profile issues as abortion, impeachment, homeland security and appropriations.
Worse yet, the ban on ads often extends far beyond 60 days before the election. In presidential races, for example, the ad ban is triggered for 30 days before the national party conventions and 30 days before the primary in each state reached by a broadcast station. In many broadcast markets, stations serve several states. As a result, in markets such as Chicago, Philadelphia and Washington, D.C., the blackout period extends upward of 200 days in a presidential election year.
Officeholders have no right to insulate themselves from criticism for even a single day, let alone 200. If the First Amendment means anything, it ought to mean that a nonprofit membership organization such as Wisconsin Right to Life can speak freely about politicians and issues — especially close to an election. The right to do so is central to the First Amendment and fundamental to the maintenance of a healthy democracy.
McCain-Feingold also represented the single worst decision of President Bushâ€™s career, and his abandoning of his oath to â€œprotect and defend the Constitutionâ€. President Bush said explicitly that McCain-Feingold was probably unconstitutional (as it clearly is), but passed the buck to the Supreme Court which then, by a 5-4 vote, abandoned their oaths as well. Just as Captain Willard was supposed to kill the insane Colonel Kurtz in Apocalypse Now, the Court should have terminated BCRA with extreme prejudice, and soundly scolded McCain, Feingold, and friends for trampling what is arguably the most important of Americansâ€™ constitutional rights. As I said, for that reason alone, President Bush is a failure and John McCain is a villain, if not a traitor.
The coming June ruling in this case will at least give the Supreme Court a chance to reaffirm its commitment to their solemn oath, and to their most important role in our nation of preventing government from unconstitutionally trampling our most sacred rights. Even if it is only 5-4 in favor of Wisconsin Right to Life, Iâ€™ll take it. A step in the right direction would be a great change from the Court that gave us Kelo and said that terrorists get free speech protections.