WA Lawyer Free Speech
IJ v. State of Washington
Government Agency Seeks to Silence Not Only Citizen Activists, But Their Public Interest Lawyers, Too
|IJ Client Robin Farris|
This case was a first-of-its-kind legal battle about the limits of government power, the right of free speech and political participation, and the ability of civil rights advocates to represent their clients against a government agency when that agency is violating constitutionally enshrined rights.
Washington’s Public Disclosure Commission exists to police those who merely seek to participate in the political process. In this case, the PDC pursued a policy that directly attacked America’s long-held traditions of civil rights advocacy as well: The PDC sought to unconstitutionally silence the public interest law firm that came to the aid of those the PDC tried to bully into silence in the first place. Undaunted, the grassroots political activists and their pro bono public interest attorneys filed and won a lawsuit in state court against the Public Disclosure Commission seeking to vindicate their right to receive and offer free legal aid to those whose most-fundamental civil rights are being violated by the government.
After the Institute for Justice successfully challenged Washington’s cap on contributions to recall campaigns on behalf of its clients Recall Dale Washam (RDW), Robin Farris, and Oldfield & Helsdon, PLLC, the PDC filed a complaint against RDW for failing to disclose IJ’s representation of it in the civil rights case as an “in-kind” contribution to the campaign. Had the PDC’s view prevailed, it would have meant that the PDC could regulate the pro bono representation of any client who was involved in politics, restricted the ability of public interest firms to represent political speakers, and threated IJ’s non-profit status. Representing itself and the clients in the earlier case, IJ filed a complaint in state court and obtained a preliminary injunction. On February 20, 2015, the Pierce County Superior Court heard arguments as to whether IJ and the other plaintiffs were entitled to judgment. The court ruled in IJ’s favor and entered judgment for IJ and its co-plaintiffs on all claims. The PDC did not appeal this ruling.
This case has national significance because IJ, like most public interest law firms, is a 501(c)(3) organization, which doesn’t charge its clients for its services and, under the tax code, attracts tax-deductible contributions to sustain its mission. If the PDC had been successful in its efforts to require the Recall Dale Washam campaign to count IJ’s help as a campaign contribution, IJ would have lost its ability to speak out freely through its pro bono legal help and its tax status would have been jeopardized because IJ’s legal services would be misconstrued as political advocacy—a “no no” in the nonprofit world. Moreover, political committees that received free help in vindicating their civil rights would then face massive fines and even criminal punishment for accepting what the PDC called “in-kind contributions”—or what American jurisprudence has always considered vitally important free civil rights legal representation. This is because many political committees operate under limits on how much any person may contribute to them—in this case, that limit is a mere $950, or about two hours of billable time for the average attorney from any major American city.
This case put an end to the PDC’s unprecedented actions and set an important precedent about the ability of speech regulators to frustrate federal civil rights law. It beat back a significant threat to public interest representation that, had it been successful, could have set a dangerous precedent for the regulation and restriction of pro bono representation across the country.