More First Amendment Fallout

McCain-Feingold has been criticized by conservatives (and liberals claim to be the free speech people) for its potential and actual impact on political speech. Although the Right and the Left have a strong precense in the blogosphere, the Right pretty much owns talk radio. The reasons are not that important, but the impact is. The Right gets its message out via talk radio, as the LameStream Media is often at best an reluctant news source of stories that help conservatives.

The claims of the Right that M-F was a threat to free speech are now no longer hypothetical. The first lawsuit to limit free speech, brought of course by a liberal, has been successful.

Talk-radio hosts regularly discuss candidates and ballot issues, often with a particular point of view in favor of one or opposed to another. Do those comments constitute a financial contribution to a campaign?

Thurston County Superior Court Judge Chris Wickham thinks they do. In a ruling issued Friday, Wickham said the comments and activities by KVI-AM (570) hosts Kirby Wilbur and John Carlson on behalf of the Initiative 912 campaign are in-kind contributions that must be reported to the Public Disclosure Commission.

The article does not mention M-F, and this appears to be brought under state law. Most state laws like this, however, are similarly written, so this will not end in Washington.

The ruling was sought by the San Juan County prosecutor and city attorneys for Seattle, Auburn and Kent as part of a larger case involving contributions to the Initiative 912 campaign.

Their argument is that the KVI hosts went beyond merely talking about the issue.

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The ruling has attracted attention beyond Washington's borders. "It is absolutely stunning in terms of the philosophical and theoretical questions it raises," says Michael Harrison, publisher of the talk-radio trade magazine Talkers; Harrison adds that he's not aware of a similar case elsewhere in the country.

The issue has its biggeest impact on talk radio. Although theoretically applicable to newspaper editorials, it is unlikely that they would be targeted. Blogs might be on the hit list though.

Brian Maloney, a former Seattle-area talk-show host who now runs a national blog on talk-radio issues, raises this question: If talk-radio comments count as political contributions, why not newspaper editorials? Or Web sites?

It's unclear what's the next legal step in this case. Kelly says the Radio and Television News Directors Association has been asked to look at the case. In the meantime, there's been no directive to the hosts on what they can and can't say, and Kelly says he would prefer not to do that. "To me that smacks of censorship," he says.

No kidding. But M-F explicitly excludes newspapers from its prohibition on certain types of political discussion. Can these state laws, and M-F, be used in 2008 to shut up talk radio?

We will see, because I assure you, these suits will be filed.