It’s unanimous, talk radio hosts in Washington state are free to promote ballot measures. Frankly, it’s difficult to find much to say about that result, it being so obviously correct, but the court’s decision does have a couple of interesting facets.
First, the court took a quite expansive view of Washington’s press exemption. More or less, the court held that the press exemption covers anything that gets said within the content portion of a radio show (as opposed to the advertising portion), so long as the radio station isn’t owned or controlled by a political candidate or political committee. Express advocacy, exhortations to give money, communications made at the request of the campaign or committee…everything. This is good news, though not particularly surprising because it’s a fairly straightforward interpretation of the language of the state’s press exemption.
The court does point out in footnote 10 that nothing in the decision "forecloses the legislature, or the people via the initiative process, from limiting the statutory media exemption. Whether, and to what extent, a media exemption is constitutionally required is beyond the scope of this opinion." This feels like something that was thrown in to ensure unanimity, and it is only a footnote. We just hope the citizens of Washington state won’t view it as an invitation.
Much more encouraging (and highly entertaining) is the concurrence of Justice Johnson, joined by Justice Sanders. They concur entirely with the seven justice majority, and write separately only to make clear that NNGT is entitled to attorney’s fees, a question the majority remanded to the trial court. The opinion pulls no punches, and flatly accuses the plaintiffs of bringing the suit "for the purpose of restricting or silencing political opponents. . .." After this rebuke, Johnson goes on to describe, in detail, how the lower court should calculate attorney fees. It’s a good read.
And it’s a good day for political speech in Washington. Congratulations again to NNGT and the Institute for Justice. We also wish to note our thanks to Erik Jaffe, who authored CCP’s amicus brief in the case.
For more on the case, the Institute for Justice has issued this press release.
Eugene Volokh has also posted multiple thoughts on the case.