The Radio Equalizer: Brian Maloney

06 July 2005

Judicial Ruling Could Silence Talk Radio


WA Judge Places Impossible Burden On Hosts

Fed up with increasingly disturbing cases of judicial activism?

Get ready for one that will knock your socks off.

Proving that the US Supreme Court's decimation of private property rights in the Kelo v. New London decision could be a mere warm-up act, a Washington state judge has now taken a wrecking ball to the First Amendment.

Talk radio's ability to freely express on-air opinions on the day's top news, especially of a political nature, is now taking it on the chin.

As a result of Thurston County, Washington Judge Christopher Wickham's ruling, two Seattle talk show hosts have been forced to place a monetary value on "campaign contributions" supposedly made, merely by supporting a proposed ballot initiative on the air.

The battle over gas tax increases in Washington state has been especially intense recently, as a three-cent per gallon hike took effect Friday, in the face of already skyrocketing petrol prices.

Conservatives, led by talk radio, have attempted to undo pumped-up gas taxes via ballot initiatives, working hard in recent weeks to gather enough signatures to put the proposed I-912 to a vote.

Liberal supporters of higher pump prices took I-912's backers to court, alleging wrongdoing because campaign contributors using PayPal, were not able to properly reveal necessary personal information needed for disclosure paperwork.

It was in ordering I-912's backers to get the missing information, or refund the contributions, that Judge Wickham revealed his real agenda: get talk radio.

In demanding that KVI hosts Kirby Wilbur and John Carlson determine and report a monetary value for their pro-I-912 on-air commentaries, the judge placed an impossible burden on their station.

How could a sensible dollar determination be made?

Is this a prelude to a insistance by opponents for equal time, or a matched "contribution" from station owner Fisher Broadcasting? You can bet your morning Starbucks.

Station management responded by estimating Wilbur and Carlson's comments at $10,000 each, but this would seem to open them up to further challenges.

Suppose opponents feel it's worth more? They could tie up the station in court for months, perhaps convincing the judge to prevent further on-air discussions, until the matter was resolved.

So much for the First Amendment.

More likely is that opponents of I-912, as well as future candidates, will simply demand free advertising on the station to match the supposed "contribution" in the form of a host's opinions.

This approach also appears to be a sneaky way of reimposing the FCC's former Fairness Doctrine, which forced stations to provide equal time to both sides of an issue.

Its 1987 repeal is widely credited with the talk radio revolution that followed.

KVI Program Director Dennis Kelly said this, as reported by the AP's David Ammons:

"Each host is entitled to his own opinion on the issues of the day. We don't agree with the premise of the ruling. If the judge's ruling holds, it will have a chilling effect on talk and news shows across America. It was a really unwise ruling."

Does Judge Wickham also believe newspaper editorials endorsing candidates or measures also constitute "in-kind" contributions to campaigns? What's the monetary value of a Seattle Times opinion piece?

Should we shut down political websites, while we're at it?

Brett Bader, a Republican consultant, called it "a dangerous and unenforceable ruling," according to the story.

Meanwhile, this activist judge was busy handing liberals other victories on the same issue:

In a separate case Friday, the same judge, Christopher Wickham, refused to stop the state from selling $70 million worth of highway bonds or otherwise encumbering the new gas-tax revenue before any vote on repeal.

Foes had asked that bond sales and signing of construction contracts be delayed, or that the state at least give potential buyers and contractors a clear warning that the tax could evaporate.

Wickham said he wouldn't second-guess the Legislature's decision to pass a bill that allows the state to sell highway bonds backed by the new taxes. A $70 million sale is expected this summer.

Let's hope Fisher Broadcasting has the sense to appeal this decision and see to it that its talk hosts aren't permanently muzzled by activist judges.

Otherwise, KVI might as well be shut down, now. And what about the precedent this could set for general election?

Update: Liberals react today with glee.

Two other notes: this decision was handed down late Friday, not making news until late in the weekend. The timing, coming in the middle of the holiday period, may be why so few people seem to have yet heard about it.

Also, it's noted that KVI's management does not have a history of backing up its hosts in these types of situations, but they are here and that's what's important.

If this decision stands and becomes a precedent, talk radio in Washington state could face severe future restrictions. Conservative radio has been built on this type of issues-advocacy.

Update: radio industry reaction today is one of alarm.

Wednesday: the AP story gave a confusing impression of who the judge ordered to determine and report the value of Carlson and Wilbur's pro-I-912 comments.

It stated that KVI management was forced to make the assessment, but later indicated Brett Bader actually complied with the ruling.

That means Bader, not KVI, came up with the $20,000 estimate.

Also today: I'm hearing from people who wonder why this hasn't been bigger news so far.

Theories: one, it got buried during the holiday weekend news tune-out, or the gravity of the ruling and the potential future impact haven't yet sunk in.

Believe me, in the radio industry, this decision has sent shock waves. If hosts have to be that careful about what they say, it will ruin the medium.

The minute I-912 opponents demand $20,000 in free KVI/KOMO advertising, it will be clear how dangerous this situation can become.

Ira Simmons of ChronWatch alerts me to the fact that Sean Hannity delved into this issue for today's show.

Blogs linking to this post today include Red State Rant, Bizzyblog, Blatherwatch, lgf's open thread comments section, Free Republic as well as Orbusmax.


  • Brian,

    I talked to John about this on Saturday. As I understand it, Fisher Communications was not a party to the lawsuit; No New Gas Tax was the sole defendent.

    As much as Fisher wants to appeal this, that decision belongs to the I-912 campaign. John has recommended that they appeal and ask Fisher to intervene. That possibility is being looked into and we'll probably hear more about it over the coming weeks.

    I can see this one heading all the way to the United States Supreme Court. I'd be very interested, and no little bit frightened to see what SCOTUS thinks of it.

    By Blogger Nathan, at 05 July, 2005 12:57  

  • Waaa. You phony Conservatives (Neocons) are getting a taste of your own medicine.

    Long live Congressman Ron Paul.

    Death to the New World Order!

    By Anonymous Anonymous, at 05 July, 2005 14:54  

  • Uhm...Hate to tell you this, Leftist in Libertarian clothing (Anon @ #2), but Ron Paul supports the No New Gas Tax bill.

    Yes, long live Congressman Ron Paul.

    I think someone needs to take Chris Wickham to the woodshed. Now.

    By Blogger Sailor Republica, at 05 July, 2005 16:09  

  • I have a better idea - just tell the court how much they got paid.

    Barring that, then calculate the ad time both sides got and note the contribution to both sides.

    Gosh, you know, I had a hunch this would happen...

    By Anonymous Anonymous, at 05 July, 2005 20:30  

  • The heck with taking Wickham to the woodshed - just get a rope.

    This little fruiter has been raping fathers for years in family court.


    By Anonymous Anonymous, at 05 July, 2005 22:26  

  • L Pierson writes:

    I would MAKE the good judge from Thurston County enforce his edict...Would he like to be remembered as the black-robed goon that rolled out the county sherrif to curb free speech at the point of a Glock (while on the cameras of the national media)...???

    By Anonymous Anonymous, at 06 July, 2005 00:19  

  • Here's my two-cents worth:

    Estimate the value at 2-cents. There's no objective way at arriving at such an estimate, and this idiot judge couldn't quarrel with the 2-cent estimate. I suppose that if he's serious, he'd probably impose some kind of monetary value. There's no precedent for such nonsense, and if this yo-yo did impose something, any two-bit lawyer shouldn't find too much difficulty in destroying the rationale for such a value. I mean, what's he gonna use? Market value? What an idiot!

    Mike Brown

    By Anonymous Anonymous, at 06 July, 2005 01:32  

  • With any luck and of course it isn't over, the good old Thruston County judge may have helped KPTK, "ErrAmerica" from bringing a local host on board...They are already running on the cheap. So, just "ride the net" all day. Two way streets, you know. What will poor MIke Webb do?

    By Anonymous Anonymous, at 06 July, 2005 01:42  

  • OK here is something to think about. Is a gas tax the fairest way to pay for road(s)/road improvements? Personally I think it is...the more you drive...the more fuel you use...the more you pay.

    It's the best way to promote efficiency, whether that be prodding people to buy more fuel efficient vehicles to promoting driving less.

    The gas tax was a bi-partisan bill passed by a duly elected legislature, and was supported and passed by same legislative body elected by the people of Washington.

    KVI and (fairly) other radio stations in Washington have taken the issue to task... (insert personnal opinion here)... by endless ON AIR promotion to propel the I-912 campaign. It's good for ratings of these generally conservative stations to coerce their base that they can easily rally by calling this a "LIBERAL big city SEATTLE TAX and spend SPECIAL INTEREST TAXATION with no accountability."

    The fact of the matter is, and I don't know why I'm trying to explain (a local Washington issue) to anyone who reads Brians blog that isn't from Washington. But the real issue here is, that Washington roads are in dire need of updating and repair for the general economic health of the entire state.

    I know it hurts when any new taxes are imposed on the general population. No one likes it. But, as the Washington legistature correctly discerned, the abysmal road situation needs to be updated.

    KVI radio and other eastern Washington radio stations have taken advantage of the situation to try and rile their base (and of course their ratings) to oppose one of the fairest ways to pay for road constuction there charging those who use the service the most - the most. What could be fairer?

    By Anonymous Anonymous, at 06 July, 2005 07:09  

  • I just tried to get a home loan thru WaMu. Told them I just need 50% of the total loan amount and to trust me.... I'll raise the other 50% some other way. They refused.... guess I'll have to try with the duly elected legislature!

    Renton, WA

    By Anonymous Anonymous, at 06 July, 2005 10:18  

  • Actually gas tax is the least fairest way to pay for roads as it hits the poorest workers the hardest and they are the ones least able to aford it. I think the ones getting the greatest benifit such as Boeing, Microsoft, Trucking companies and any buisness for that matter should pay any aditional taxes for all the new roads they constantly demand. also litigation should be eliminated or at least curtailed to one or two and enviromental laws need to be remade to a resonable level and the local anand state governments need to cut the waste and streamline the permitting process. also contractors should always have performance clauses in there contracts and of course performance audits with teath as in if the audit says your wasting recources then the contractor eats the diference. there is no reason projects should cost so much it seems
    for the cost of a mile of road today you could have paved half the state just 20 years ago the cost is rising at an exponential rate verses inflation. Iam sure there are dozens of ways to cut the cost and get the best bang for the buck the probelem is the state of washington is now controled by the Democrats, I thank god I left town last fall and I will never return especially with the Democrats in power

    By Anonymous Anonymous, at 06 July, 2005 11:22  

  • " thank god I left town last fall and I will never return especially with the Democrats in power"

    Good riddance and don't come back.

    By Anonymous Anonymous, at 06 July, 2005 12:30  

  • Mike in Dupont,

    That was just beautiful man, like Socrates before the Athenian court. Too bad Bader didn't think of that.

    By Blogger Nathan, at 06 July, 2005 12:40  

  • mmm, so 'supporting' a campaign is the same as 'planning, organizing, promoting, and formulating strategy for a campaign'?

    don't think those 2 were just saying it was a good idea...

    By Anonymous Anonymous, at 06 July, 2005 16:34  

  • All I want to know is, will the tax enable the state to remove the signs designating U.S. Highway 99 through Seattle that was decommissioned in the 1970s.

    By Anonymous Anonymous, at 06 July, 2005 18:31  

  • Today this story got a big national boost. Brian Maloney's favorite talk show host (sic!) Sean Hannity spent nearly an hour on the story which included an interview with a key player trying to eliminate the tax.

    By Anonymous Anonymous, at 06 July, 2005 19:38  

  • Ira, thanks, good to know Hannity jumped on the story.

    It's slowly gaining attention.

    By Blogger Brian Maloney, at 06 July, 2005 20:32  

  • What's gonna happen when the presidential elections come around? Candidates have a limited amount of funds they are allowed to spend on advertising. Does this mean we can't talk about the electoral candidates on air now?

    By Anonymous Anonymous, at 14 July, 2005 18:14  

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