In other words, the media exemption seems to offer protection only to the mainstream media, not the blogger-by-night-professional-by-day or for that matter any individual or group who is not in the media industry as a "business."

One Small Step for Free Speech, One Giant Leap for Big Media

Don't get us wrong.  By all accounts, last week certainly can be tallied in the win column for those of us who understand that "campaign finance reform" is just a euphemism for restricting political speech at the core of the First Amendment.

First, there were the oral arguments at the Supreme Court in the case of Federal Election Commission v. Wisconsin Right to Life.  As we reported in our last edition, pointed questioning from the grand mahogany bench suggested that a majority of the new Roberts Court -- slim as the margin might be -- is poised to restore at least some of the free speech rights taken away by McCain and Company in their Bipartisan Incumbent Protection Act.  (Read "Another Irony of Being John McCain" )

That's especially welcome news for advocacy groups like CFIF since, for more than four years, it's been illegal even to refer to a federal candidate in television or radio advertisements just before an election.  And, while we may be marking it down too soon, if at least five justices make any exception to that ban -- as appears likely -- the ruling would be a win in the free speech books.

Then, just a day later after the arguments in our nation's capital, a state supreme court ensured that last week could be recorded as a win in permanent ink by ruling unanimously against campaign finance "reformers" on the other coast. 

Specifically, the Supreme Court of the State of Washington issued a decision holding that two Seattle radio talk show hosts did not run afoul of state campaign finance laws by commenting on an anti-gas tax initiative during their drive-time programs.  According to Washington's High Court, the on-air advocacy was protected free speech not restricted campaign electioneering.

The unanimity and clarity of the win was encouraging, to say the least, to those of us who still believe voters -- rather than politicians -- are those who need to be heard through elections. 

Indeed, all seven justices of the Washington State Supreme Court could hardly hide their disbelief that four local governments, including the City of Seattle, had sued the two radio talk show hosts for daring to discuss an initiative that the state's own voters had spearheaded and petitioned onto the ballot. 

The court went so far as to point out that the political prosecution had the perverse effect of censoring the radio talk show hosts on the public topic of repealing the gas tax because there was no way to know when their on-air commentary would violate restrictions on in-kind political contributions.

In fact, for the radio talk show hosts and their station, the Washington Supreme Court decision was a total victory.  All seven justices set forth a straightforward rule in protecting the broadcast commentary: it was exempt from the state's campaign finance laws thanks to a media exemption.  No doubt, this was both the simple and sensible answer since the state's campaign finance laws include such an exemption.

Nevertheless, there's a devil in the details.  In making the ruling, the court implied that the media exemption really only protects the so-called mainstream media.  Throughout the decision, the justices emphasized that the case involved "a media entity ... exercising its valid press functions," and that "the voters ... intended to preserve the media's traditional function of public commentary." 

But what about the rest of us?  Over and over again that same drum beat, the court's focus and concern was the "media entity," "here, the radio station," and not whether any and all commentary enjoyed free speech protection.

In taking a look at the media exemption, itself, there was basis for the court's implied rationale.  After all, though the media exemption protects "any news item, feature, commentary, or editorial" from the state's campaign finance restrictions, it does so only for content that is published "in a regularly scheduled news medium ... controlled by a person whose business is that news medium, and that is not controlled by a candidate or political committee." 

In other words, the media exemption seems to offer protection only to the mainstream media, not the blogger-by-night-professional-by-day or for that matter any individual or group who is not in the media industry as a "business."

Thus, the decision is great for the Seattle Times and the KVI 570 AMs of the State of Washington, but it doesn't seem to be a silver bullet for the rest of us.  Nevertheless, free speech advocates can't complain, the Washington ruling is still one small step for free speech, even though it also was one giant leap for big media. 

A couple of months from now most observers expect at least five justices on the highest court in the land to take another step in same direction.  We hope that announcement from One First Street will be a giant leap for everyone else.

May 4, 2007
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