With this lawsuit, IJ-WA intends to send a message to local prosecutors in Washington, and to governmental agencies in charge of implementing “campaign finance” laws across the country, that they may not interfere with the exercise of fundamental rights without being challenged.
Nearly 50 years ago, the United States Supreme Court wrote:
Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. This of course includes discussions of candidates, structures and forms of government, the manner in which government is operated or should be operated, and all such matters relating to political processes.
The free exchange of ideas provides special vitality to the process traditionally at the heart of American constitutional democracy—the political campaign. Indeed, the constitutional protection afforded political speech has its fullest and most urgent application precisely to the conduct of political campaigns.
This principle reflects our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” In a republic where the people are sovereign, the ability of citizens to make informed political decisions is essential. The First Amendment thus affords the broadest protection to such political expression in order to assure the unfettered interchange of ideas for bringing about of the political and social changes desired by the people. “Specifically, the First Amendment prohibits the State from silencing speech it disapproves, particularly silencing criticism of government itself. Threats of coerced silence chill uninhibited political debate and undermine the very purpose of the First Amendment.” An important corollary to the right to speak is the public’s right to receive information.
The Washington Constitution provides even greater protections for political speech—indeed, any kind of speech—than does the U.S. Constitution. Our Constitution reads, “Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.” In Washington, free speech is a “preferred right” when balanced against other constitutional rights.
Related to the right to speak is the right to freely associate. “Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association.” The freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the “liberty” assured by the Due Process Clause of the 14th Amendment, which embraces freedom of speech. “This right of association, like free speech, lies at the foundation of a free society.” This right is crucial in preventing the majority from imposing its views on groups that would rather express other, perhaps unpopular, ideas. In view of the fundamental nature of the right to associate, governmental action that may have the effect of curtailing freedom to associate is subject to the closest scrutiny by the courts.
A final, but by no means less imperative, principle is the importance of freedom of the press. The U.S. Constitution specifically selected the press—in all its forms—to play an important role in the discussion of public affairs:
[T]he press serves and was designed to serve as a powerful antidote to any abuses of power by governmental officials and as a constitutionally chosen means for keeping officials elected by the people responsible to all the people whom they are selected to serve. Suppression of the right of the press to praise or criticize governmental agents and to clamor and contend for or against change . . . muzzles one of the very agencies the Framers of our Constitution thoughtfully and deliberately selected to improve our society and keep it free.
Indeed, upon presenting the Bill of Rights to Congress in 1789, James Madison explained that “the liberty of the press is expressly declared to be beyond the reach of this government.” Consequently, since the first days of the Republic, our courts have recognized the importance of a free press and have remained vigilant to protect it from government intrusion. This vigilance has endured even when governmental efforts to restrict or regulate the press have taken unusual or unique forms—“Governmental restraint on publishing need not fall into familiar or traditional patterns to be subject to constitutional limitations on governmental powers.”
The Prosecutors’ actions in this case plainly violate these bedrock constitutional principles. Specifically, the Prosecutors’ actions, and the Preliminary Injunction Order, violate the rights of free speech, free association, and free press in the following ways.
Free speech rights are “delicate and vulnerable, as well as supremely precious in our society.” Consequently, courts have required that legislative enactments that impinge on these rights be drawn with precision and narrow specificity:
Vague statutes are objectionable for three primary reasons. First, they trap the innocent by not providing fair warning. Second, they impermissibly delegate basic policy matters to lower level officials for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, when vague statutes involve sensitive areas of First Amendment freedoms, they operate to inhibit the exercise of those freedoms. . . . [T]hese vagueness concerns are more acute when a law implicates First Amendment rights and, therefore, vagueness scrutiny is more stringent.
A governmental standard with an uncertain meaning will inevitably lead citizens to steer far wider of the unlawful zone than if the boundaries of the forbidden area were clearly marked. The danger of such a chilling effect upon the exercise of vital First Amendment rights must be guarded against by clearly informing citizens what is being forbidden. An enactment is void for vagueness if persons of common intelligence must guess at its meaning and differ as to its application.
The relief sought by the Prosecutors and the Preliminary Injunction Order falls squarely within this definition of vagueness. The order requires NNGT to report on-air statements made by talk radio hosts regarding I-912 as “in-kind” contributions by Fisher Communications. Does this mean that all statements regarding I-912 must be reported, or simply those that are supportive of I-912? If it is the latter, what constitutes a “supportive” comment? Should NNGT report or omit those times when Wilbur and Carlson featured guests and callers who urged a pro-gas tax position? What about statements by other talk show hosts? Are they reportable? If only statements supporting the initiative are reportable, how strong do they have to be? Are lukewarm endorsements reportable? What about newspaper editorials in favor of I-912? On the basis of the old adage that there is no such thing as bad publicity, what about statements in the media opposing I-912? They certainly bring awareness of I-912’s existence to the public. Should they be reported by NNGT, or by Keep Washington Rolling instead?
The Prosecutors may argue that Wilbur and Carlson were part of the grassroots efforts to oppose the gas tax and that this makes them different from other media figures. If that is what distinguishes Wilbur’s and Carlson’s comments from other media statements, what amount of contact between the media and the campaign is too much? When does an on-air endorsement of a candidate or issue become a reportable contribution? America has a long and noble tradition of advocacy journalism, oftentimes about specific issues before the electorate. For instance, the Federalist Papers were advocacy pieces published in New York newspapers urging voters in that state to approve the new Constitution. From William Randolph Hearst’s “yellow journalism” to today’s Air America and Rush Limbaugh Program, media personalities have always been active in promoting causes, campaigns and candidates, oftentimes fully engaging in the political process. If such efforts are subject to regulation, then we have entered a new, more antiseptic era of American discourse, where the government can ensure that great “public crusades” for social change cannot originate from journalists or media figures. Not surprisingly, many such crusades will never be undertaken at all and the political status quo can remain unchallenged.
This case thus presents the question of whether the media’s freedom of association and speech is subject to regulation and restriction by the government. Does the participation of a media figure in a campaign strip his him of his strong First Amendment right to discuss the issues? Because the health of our democracy depends on a vigorous press that is not constantly asking itself if what it says or does is permitted by the government, the answer to that question must be “no.”
Because the relief in the Preliminary Injunction Order is so vague, the safest decision for both the media and campaigns will be to steer “far wider” of the reportable zone than if its boundaries were clear. When no one can reasonably guess what is or is not permissible, everything becomes presumptively impermissible. At this point, our free speech rights are subsumed in a cloud of questions and fears.
A governmental restriction may be so vague and ambiguous as to constitute a prior restraint on speech. A prior restraint is an official restriction imposed on speech or other forms of expression in advance of publication. Because it is unclear which speech falls under the government’s regulation, potential speakers may simply refrain from speaking as much or at all in order to avoid engaging in the regulated conduct.
Under federal law, a prior restraint carries a heavy presumption of unconstitutionality. The Washington Constitution, however, flatly forbids prior restraints of constitutionally protected speech.
There are numerous ways in which the relief sought by the Prosecutors constitutes a prior restraint. Media companies, concerned that they not be perceived as making reportable contributions to controversial campaigns, will inevitably order their on-air personalities to simply refrain from talking about such campaigns. Moreover, although initiative campaigns do not have a cap on contribution amounts, Washington law does forbid any person from making contributions in the aggregate of $5,000 within 21 days of a general election. Because what constitutes a media “in-kind” contribution according to the Prosecutors is so utterly unclear, the safer bet for a media company wishing to avoid the $5,000 limitation will be to not mention the campaign at all—a devastating blow to any campaign, especially in the crucial three weeks before a general election. Such self-censorship by the media is undoubtedly what the Prosecutors hope to achieve.
A governmental restriction is overbroad if it prohibits constitutionally protected speech. Restrictions that punish behavior with fines or imprisonment require particular scrutiny if they make unlawful a substantial amount of constitutionally protected conduct, even if they also have legitimate application.
Here, the scope of the relief sought by the Prosecutors is breathtaking—NNGT must report on-air discussions of its campaign as in-kind contributions. The administrative burden suggested by this order is stunning and interferes with the campaign’s ability to actually carry on its promotion of I-912. Fisher also must be careful to ensure that it does not unwittingly become contributors to the campaign. For these reasons, the Prosecutors’ actions and the Order are both unconstitutionally overbroad.
The Prosecutors have delegated their prosecutorial authority to a private party with substantial political and financial interests in ensuring that I-912 does not pass. While prosecutors need not be neutral and detached, a “scheme injecting a personal interest, financial or otherwise, into the enforcement process may bring irrelevant or impermissible factors into the prosecutorial decision and in some contexts raise serious constitutional questions.” Thus, courts have found that “serious due process implications arise when the investigator and prosecutor have a personal financial interest in the outcome of the proceedings.” This is because a prosecutor’s obligation is not merely to win, but also to see that justice is done—and part of that consideration is an obligation to make sure that a defendant’s rights are scrupulously preserved. Even if a financially interested prosecutor does scrupulously adhere to the interests of justice, the appointment of an interested prosecutor calls into question the integrity of the entire process and cannot constitute harmless error.
There is simply no way that the Foster Pepper law firm can objectively discharge the role of a prosecutor committed to doing justice when it has such a substantial political and financial stake in seeing that NNGT is embarrassed, harassed and pre-occupied with litigation and that I-912 goes down to defeat. Foster Pepper’s involvement does not satisfy the requirement that the proceedings have “the appearance of justice” because “a prosecutor with conflicting loyalties presents the appearance of precisely the opposite.” Thus, the Prosecutors committed a due process violation when they delegated their authority to Foster Pepper in the first place.
The lead attorney is Institute for Justice Washington Chapter Executive Director Bill Maurer. Also on the litigation team are IJ-WA Staff Attorneys Michael Bindas and Charity Osborn.
The Institute for Justice is a nonprofit public interest law firm that represents individuals, free of charge, when government has violated their essential liberties. From its offices in Seattle, the Institute’s Washington Chapter litigates under the Washington Constitution to reinvigorate economic rights, preserve property rights, promote educational choice, and defend the right of Washingtonians to freely speak, write and publish on all subjects. The national organization trains law students, lawyers and others in the tactics of public interest litigation with the goal of limiting governmental power and advancing individual freedom. The Institute was founded in 1991.
For more information, or to arrange an interview with the Institute for Justice and its clients, please contact:
John E. Kramer
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Institute for Justice
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W: (703) 682-9320, ext. 205
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or
William R. Maurer
Executive Director
Institute for Justice Washington Chapter
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Seattle, WA 98104
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C: (425) 941-7905
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See Cecil C. Kuhne, III, The Diminishing Sphere of Political Speech: Implications of an Overbearing Election Bureaucracy, 3 Geo. J.L. & Pub. Pol’y 189 (generic cialis).
Wash. Const. art. II, § 1; Washington Initiatives Now (WIN) v. Ripple, 213 F.3d 1132, 1134 (9th Cir. 2000).
Wash. Const. art. II, § 1. In Washington, the state government only operates pursuant to power delegated to it by the people. See Wash. Const. art. I, § 1 (“All political power is inherent in the people, and governments derive their just powers from the consent of the governed, and are established to protect and maintain individual rights”).
WIN, 213 F.3d at 1134.
Wash. Const. art. II, § 1(a).
Id.
http://www.washingtonvotes.org/Legislation.aspx?ID=38421.
Final Bill Report ESSB 6103 (generic cialis), available at http://www.leg.wa.gov/pub/billinfo/generic cialis-06/Htm/Bill%20Reports/Senate%20Final/6103-S.FBR.htm.
Andrew Garber, Gasoline tax fuels backlash, Seattle Times, July 24, generic cialis; John Carlson, The reason folks flocked to the gas-tax-repeal initiative, Seattle Times, Aug. 4, generic cialis.
Keep Washington Rolling lists, among others, Boeing; Microsoft; Puget Sound Energy; the Washington State Labor Council; the Washington State Building and Construction Trades Council; Foster Pepper & Shefelman; Preston, Gates & Ellis; Futurewise; the Sierra Club; and WashPIRG as members. http://www.keepwashingtonrolling.com/who.html.
Julia A. Youngs, Campaign speech ruling raises problem, Seattle Post-Intelligencer, July 13, generic cialis.
RCW 42.17.080 and .090 require a campaign to report certain campaign contributions to the Washington State Public Disclosure Commission in regular reports.
Complaint to Enforce Washington’s Fair Campaign Practices Act, Chapter 42.17 RCW (hereinafter, “Complaint.” A copy is available from the Institute for Justice Washington Chapter.) The Prosecutors also alleged that NNGT failed to report certain identifying information for persons who had made monetary donations to NNGT over the Internet arising from the fact that the payment service that NNGT used to collect early Internet donations would not supply all the information needed for full disclosure under the FCPA. NNGT diligently worked to collect this information and provide it to the Public Disclosure Commission in order to comply as fully as possible with the disclosure requirements for donors. In that regard, it appears that a significant portion of the donations lacking complete information were made anonymously by the private law firm to whom the Prosecutors delegated their prosecutorial authority in an effort to manufacture evidence against NNGT. See Declaration of Rod Dembowski, counsel for the Prosecutors, dated June 22, generic cialis, at 3, para. 10, in which he admits to making purposefully anonymous Internet contributions to NNGT using his credit card.
Complaint at 6, 9-10.
RCW 42.17.360.
RCW 42.17.400(2).
RCW 42.17.360(4), .395(1).
http://www.keepwashingtonrolling.com/who.html.
Public Disclosure Form C3 for Keep Washington Rolling dated July 6, generic cialis, available at http://hera.pdc.wa.gov/wx/viewdoc_new.asp?strAppName=PDC&nZoomPercent= 100&nDocId=812019&nQRSeq=10&nCurrentIndex=1&nPageNum=1&UseIrc=no.
See Washington State Treasurer, List of Fiscal Agents (Bond Registrar and Paying Agent), Financial Advisors, and Bond Counsel, at http://tre.wa.gov/BondDebt/fiscal.htm.
Keep Washington Rolling Press Release dated June 22, generic cialis available at http://www.keepwashingtonrolling.org/news.html.
Order Granting Preliminary Injunction Requiring Compliance With Fair Campaign Practices Act, No. 05-2-01205-3, at 2 (July 1, generic cialis) (hereinafter, the “Preliminary Injunction Order”).
Id. at 3.
Anne Kim, Gas tax foes turn in nearly double the signatures needed for ballot, Seattle Times, July 8, generic cialis.
Mills v. Alabama, 384 U.S. 214, 218-19 (1966).
Brown v. Hartlage, 456 U.S. 45, 53 (1982).
Collier v. Tacoma, 121 Wn.2d 737, 745 (1993) (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971)).
New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
Buckley v. Valeo, 424 U.S. 1, 14-15 (1976).
Id. (quoting Roth v. United States, 354 U.S. 476, 484 (1957).
Public Disclosure Comm’n v. 119 Vote No! Committee, 135 Wn.2d 618, 626 (1998).
Fritz v. Gorton, 83 Wn.2d 275, 297 (1974).
Wash. Const. art. 1, § 5.
State v. Coe, 101 Wn.2d 364, 375 (1984).
Buckley v. Valeo, 424 U.S. 1, 15 (1976).
NAACP v. Alabama, 357 U.S. 449, 460 (1958).
Id.
Stephanus v. Anderson, 26 Wn. App. 326, 335 (1980).
Boy Scouts of Am. v. Dale, 530 U.S. 640, 647-48 (2000).
Buckley, 424 U.S. at 25.
Mills v. Alabama, 384 U.S. 214, 219 (1966).
Id.
1 Annals of Congress 141 (1789-96).
Nelson v. McClatchy Newspapers, Inc., 131 Wn.2d 523, 537 (1997).
Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 256 (1974).
NAACP v. Button, 371 U.S. 415, 433 (1963).
State ex rel. Public Disclosure Comm’n v. Rains, 87 Wn.2d 626, 630 (1976).
Cal. Teachers Ass’n v. State Bd. of Ed., 271 F.3d 1141, best generic cialis prices0 (9th Cir. 2001).
Grayned v. City of Rockford, 408 U.S. 104, 109 (1972).
Keyishian v. Board of Regents, 385 U.S. 589, 604 (1967).
State v. Glas, 147 Wn.2d 410, 421 (2002).
The Federalist viii (Roy P. Fairfield ed., 1961).
Seattle v. Bittner, 81 Wn.2d 747, 756 (1973).
In re Marriage of Suggs, 152 Wn.2d 74, 84 (2004) (scope of anti-harassment order so vague as to constitute an unconstitutional prior restraint).
Neb. Press Ass’n v. Stuart, 427 U.S. 539, 558 (1976).
State v. Coe, 101 Wn.2d 364, 374 (1984).
RCW 42.17.105(8).
State v. Pauling, 149 Wn.2d 381, 386 (2003).
Seattle v. Huff, 111 Wn.2d 923, 925 (1989).
Marshall v. Jerrico, Inc., 446 U.S. 238, 249-50 (1980).
Johnson v. Bd. of Governors of Registered Dentists, 913 P.2d 1339, 1349 (Okla. 1996); see also Cantrell v. Commonwealth, 329 S.E.2d 22, 26-27 (Va. 1985) (“A conflict of interest on the part of the prosecution in itself constitutes a denial of a defendant’s due process rights under art. I, § 11 of the Constitution of Virginia, and cannot be held to be harmless error”).
Bhd. of Locomotive Firemen and Enginemen v. United States, 411 F.2d 312, 319 (5th Cir. 1969).
See Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 814 (1987).
Id. at 811-12 (citations omitted).
McConnell v. FEC, 540 U.S. 93, 285-86 (2003) (Thomas, J., concurring in part and dissenting in part) (citations and quotation marks omitted).
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