Ruling Throws Media For A Curve
Ruling throws media for a curve
http://www.theolympian.com/apps/pbcs...NEWS/507030302
BY BRAD SHANNON
Wednesday July 6, 2005
A judge's ruling that two talk-radio hosts' on-air activity could be considered campaign contributions has attracted concern that the decision could have unintended effects on other media.
"This is an extremely important ruling that has very significant implications across the country for the First Amendment," warned Mark Lamb, one of two lawyers who represented Initiative 912 sponsors in Thurston County Superior Court against claims by opponents that the radio hosts' activities could be considered political contributions.
Superior Court Judge Chris Wickham ruled Friday morning that on-air advocacy of the anti-gasoline-tax initiative by KVI Radio hosts John Carlson and Kirby Wilbur was in effect a political campaign contribution that needed to be listed as an in-kind donation by I-912 sponsors.
KVI had issued a news release May 9 bragging about the success of Wilbur and Carlson in helping to "promote the launch of a new gas-tax initiative."
And Kirby told the Spokane Spokesman-Review newspaper a day later that "our legal team is writing the initiative."
Wickham gave few details explaining his decision. But he indicated his ruling applied to the airtime when the hosts were soliciting money and promoting the campaign -- and not their on-air interviews and discussions of issues.
Carlson, a conservative Republican who ran for governor in 2000 and lost to Democrat Gary Locke, said the ruling raises questions for "the media at large."
"If commentary is equated with a commercial, does this mean that editorial endorsements that give out a campaign address and contact information is now a reportable in-kind donation?" Carlson asked. "Does it mean that a television commentary that vigorously opposes an initiative has to be reported? ...
"At what point does commentary become a commercial?" Carlson added of Wickham's decision. "He didn't make those distinctions."
Seattle lawyer Brian Johnson, who represents several media groups including a Seattle daily and a weekly newspaper, echoed those concerns.
The ruling comes at a time the Federal Elections Commission is wrestling with whether bloggers, who write partisan accounts posted on Internet sites, are subject to reporting in-kind donations, Johnson said.
"It is a very troubling decision because it shows more and more that the regulators are reluctant to carve the media out of its regulation," Johnson said. "First they come for the KVIs of the world; later on maybe they come for the Sulzbergers (publishers of the New York Times)."
In the case of the bloggers, Johnson said they are resisting federal regulation, claiming First Amendment rights.
Lawyers who sought the disclosure, Mike Vaska and San Juan County prosecutor Randall Gaylord, said their aim was to ensure that campaigns disclose all the help they're receiving for their campaigns.
The disclosure law "applies to talk show hosts just as it applies to everyone else," Vaska said.
It's important for the public to see what forces are driving campaigns, Gaylord said.
Gaylord disputed the potential effects of Wickham's ruling on media groups.
"Certainly station owners may be cautious about allowing on-air personalities to become campaign organizers," Gaylord said. "But it doesn't change the words that can be used in the campaign or as part of a campaign."
It wasn't clear whether Fisher Radio, which owns KVI and other outlets, would sue to overturn the ruling. A spokesman for the company did not return a telephone call.
But clearly, the company was uncomfortable with the news release issued by KVI in May that touted Wilbur's and Carlson's advocacy and lauded them for having helped launch the initiative.
"The most important thing to remember is that the station is not and cannot have the appearance of sponsoring this or any initiative," Robert Dunlop, general manager for the Fisher Radio parent company, wrote to Carlson, Wilbur and other program hosts in a May 11 e-mail.
"We find ourselves in a very difficult position with political advertising regulations if the station is seen as a supporter of this issue, as opposed to the opinion of the hosts. The press release sent ... gives the appearance that we are sponsoring this No Gas Tax initiative," Dunlop added. "While we will absolutely not censor you in any way or curtail your opinion, we also cannot be viewed as driving a political item."
Vaska and Gaylord described the e-mail as a "smoking gun" in the legal case, showing that even the station knew there was a problem. The Public Disclosure Commission, whose citizen members last visited the issue of reporting ads in 1992, has not ventured into this dispute. Agency Executive Director Vicki Rippie did not see the ruling having a direct effect on the PDC or its enforcement activities in campaigns.
In the 1992 case, the Fisher broadcasting company had sought an advisory ruling on radio ads that were prerecorded on a political theme. Those were deemed in-kind contributions that had to be reported, Rippie said.
The five citizen commission members will be told about Wickham's ruling and have a chance to consider what it wants to do, Rippie said.
Johnson, the media lawyer, said American journalism has changed dramatically since the days of the founding fathers, when newspapers were partisan productions much like KVI's hot-talk radio.
"If you really read newspapers from the 1790s, you would know that the KVIs of the world existed in the newspapers of that time. They were owned or dominated by one party or the other. Historically, the truth was not important ... but the party's views were to those newspapers," Johnson said.
"The framers of the Constitution thought that was the media they were dealing with. Professional, objective journalism did not arrive until much later in American history. So KVI radio has good claim to First Amendment principles," Johnson added.
"If the media thinks they are exempt because they are the objective media, that could be fool's gold."
Brad Shannon is political editor for The Olympian. He can be reached at 360-753-1688 or beshanno@olympia.gannett.com.
