Speaking Politically
There were developments in two significant political speech cases this week. First, on Wednesday, The United States Supreme Court heard oral argument in FEC v. Wisconsin Right to Life (and companion case McCain v. WRTL). The WTRL cases challenge the constitutionality of McCain-Feingold's blackout period for issue ads mentioning the name of a candidate. The general consensus among Court watchers is that the Act will be found unconstitutional as applied to WRTL's ads. There is far less consensus regarding the manner in which the Court will reach that result. Rick Hasen at Election Law has been following these cases closely (see here and here). Linda Greenhouse and David Savage cover the argument for the mainstream side of the media.
The other big political speech decision this week is the Washington Supreme Court's unanimous decision in San Juan County v. No New Gas Tax. In NNGT, a talk radio host's on-air advocacy of a ballot measure was challenged as a campaign contribution subject to expenditure limits. The case turned on the interpretation of the so-called "media exception" to Washington's campaign finance laws. Finding that the talk show host was covered by the exception, the Court did not reach constitutional issues. More interesting than the court's interpretation of Washington law is the language of the concurrence. Although both joined the majority, Justices Johnson and Sanders went to the trouble to tell the governmental actors what they really thought about the action:
Today we are confronted with an example of abusive prosecution by several local governments. San Juan County and the cities of Seattle, Auburn, and Kent (hereinafter Municipalities) determined to file a legal action ostensibly for disclosure of radio time spent discussing a proposed initiative. 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.
Although claims of suppression and censorship have become somewhat routine, very few survive even slight scrutiny. NNGT is the rare case in which a court has found that government actors have, in fact, actively worked to silence citizens. They ought to be ashamed. The Seattle Times's blog has more.
