When Talk Radio Can't

I admit, I am a talk radio junkie, which is hard for me since I am also a music junkie as well so I jump around the radio dial a lot. But what I love most about talk radio is its immediacy, its timeliness. Discussion of the issues of the day are what makes talk radio successful and important. Everything from syndicated shows like Rush Limbaugh and Sean Hannity to local radio shows dealing with local issues, talk radio is designed to inform and entertain.

But given that most talk radio is largely conservative in its political leanings, it was bound to attract the attention of the more liberal in our midst as somehow not quite right. These are the people that cling to the era of the fairness doctrine, that broadcasters must give equal time to each side of an issue. But that is not the current rule, and it has allowed some radio hosts to be blantantly partisan in their discussions and evidence their partisanship by attacks on their political opponents, having guests of a certain political bent but not others and support issues that meet their political agenda.

While talk radio is largely a conservative medium, it doesn't have to be and frankly I wish that it wasn't (it would give me more radio stations to flip to and more fodder for this little corner of cyberspace). But what happens to talk radio when they get involved in politics too much? Well, if they are in Washington State, they get a great big "shut your pie hole" from the courts.

In the case of San Juan County vs. No New Gas Tax, a couple of talk radio hosts were encouraging their listeners to support an initiative that would have limited or reduced the rather large gas tax increases in the county. A local law firm sued alledging that by making the statements they did, the hosts made an in-kind contribution to the No New Gas Tax committee, which did not report the in-kind contribution.

To say that the case is convoluted is a understatement. First it looks like the County of San Juan Washington brought the case, right? Well not so fast, according to the Institute for Justice, a law firm was delegated with the power to bring the suit:

[T]he government has delegated its prosecutorial authority to a private law firm that stands to gain politically and financially from harassing the initiative campaign. The firm, Foster, Pepper & Shefelman PLLC, is not only a member of the political opposition to the initiative but also “bond counsel” to the State agency that would issue bonds based on the revenue derived from the tax increase. Simply put, with no tax, there are no revenue and no bond issuance, and therefore fewer potential fees for Foster Pepper.

I am sure this type of delegation happens regularly in a number of circles, but the finanical entanglementson the back end bothers me. But that is beside the point.

What bothers me even more is the fact that everyone, including the Washington state court system, seems to be overlooking a couple of factors here. First, I always thought freedom of hte press meant just that. If the New York Times can publish the Pentagon Papers, details of various secret government anti-terrorist surveillence programs and be protected, why then can't a couple of local disk jockeys talk about a local issue. Is a radio talk show host not a member of the press? Or is freedom of the press only for those with approved talking points?

Second, is not the purpose of editorials that appear in newspapers meant to pursuade? Just about every newspaper in America has, at one time or another, advocated for certain political causes, whether that be through the endorsement of canddiates, the urging of the passage of certain legislation or initiatives, or simply presenting a singular point of view on a topic. No one questions the right of newspapers to do this, and no one calls the newspaper editorial an in-kind contribution. An endorsement by the Washington Post is highly coveted in area politics and can be particuarly valuable for a campaign, but I don't consider it an in-kind contribution of any sort--and neither does the FEC or most states.

But in Washington state, a radio host, no matter what their political pursuasion cannot do the same thing as a newspaper editor. I fail to see the distinction, even if there were a fairness doctrine in place for broadcasters--which, again, there is not.

The implications of this case are so multitudinous that one could forgiven for not seeing them all. Were this ruling to stand, radio, TV, newspapers, newsletters, bloggers, anyone with an opinion and a means to express it could be making an in-kind contribution to a candidate or an initiative, all without the knowledge of the campaign. What are we left with, a nightmare scenario of unreported, unregulated speech.

Oh wait, that was the purpose of the First Amendment--silly me, there I go believing in the Constitution again.

Tip of the Hat to Paul Michael Sherman for the link to the Institute for Justice link about the case and Richard Sheppard who was kind enough to post a link to a video of recent court proceedings on the case. Both links came through the Election Law Listserve.