Some speech is costly, but ultimately it’s free

Money talks and talk is money.

And if you can regulate the expenditure of money in public debate, you can regulate talk. Right?

That was the conclusion of some Washington state bureaucrats who wanted to silence the backers of a ballot initiative to repeal a gasoline tax. And it worked.

Attorneys representing several Washington cities and one county managed to persuade a judge to issue an order requiring the initiative backers to report the on-air commentary of Seattle radio talk show hosts Kirby Wilbur and John Carlson of KVI-AM as an in-kind contribution.

That's like saying a newspaper editorial endorsement is an in-kind contribution and setting its value based on the standard advertising rate. That is absurd.

Because Washington law prohibits any campaign from accepting $5,000 in contributions from any one source in the final three weeks of a campaign and the cities were claiming the on-air commentary was worth $140 a minute, rather than face hefty fines, the radio station forced Wilbur and Carlson to stop talking about the ballot measure. The cities had effectively engaged in prior restraint through legal intimidation.

On Election Day the initiative failed.

But it did not end there. The state chapter of the Institute for Justice took up the cudgel and argued the case before the state Supreme Court.

In April, the court issued a narrow ruling that belatedly stated the radio talk show hosts were covered by a media exemption in the state's Fair Campaign Practices Act, but it did not address the constitutionality of the law's tight restrictions on campaign spending.

Media exceptions run counter the basic concept that everyone should have a free-wheeling, free-rein right to free speech.

In a stinging concurring opinion, Justice Jim Johnson described the cities' action as "disregard for core freedoms of speech and association," and said the "litigation was actually for the purpose of restricting or silencing political opponents ..."

He also admonished, "Prosecutors must not use the threat of a punitive lawsuit, amounting to an unconstitutional prior restraint on free speech, to block political opponents from exercising their constitutional rights."

The issue of talk as money is hardly unique to Washington state or is even new.

Back in 1976, in Buckley v. Valeo, the U.S. Supreme Court found that the Federal Election Campaign Act of 1971 was overreaching in its limits on spending in elections. The court upheld individual contribution limits and disclosure provisions, but found unconstitutional caps on campaign expenditures and limits on how much an individual or group or a candidate himself might spend.

Today the high court is again addressing the McCain-Feingold Act that restricts groups from spending their own money immediately before primary and general elections. It previously upheld the law on a 5-4 vote, with now-retired Justice Sandra Day O'Connor joining the majority.

During April oral arguments in the case -- which is over the Wisconsin Right to Life group being barred from buying ads targeting Sen. Russ Feingold -- Justice Antonin Scalia flatly said of the court's previous ruling on the law, "Maybe we were wrong last time."

Also during those oral arguments, both Justices John Roberts and Samuel Alito asked pointed questions that hinted at their skepticism about the First Amendment implications of the law's spending restrictions.

Yes, money talks and talk may have a monetary value, but the syllogism should not conclude that therefore both can be regulated. It should conclude that the First Amendment protects both. Free speech is meaningless if you can't spend your own money to disseminate your opinions.

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If you dish it out, you must be able to take it.

After my column a couple of weeks ago about Al Gore's book "The Assault on Reason," I received unsigned fan mail on a page of yellow legal pad.

It included this complaint: "Too bad you, (Ann) Coulter & the other can't make any constructive criticisms -- you might be a worthwhile columnist."

I can only assume the kind of constructive criticism the writer had in mind was that which was scrawled in the margin of a clipping of my column. It stated: "Your writing is as lousy as your appearance."

Now that pains, because I take pride in my writing.

Thomas Mitchell is editor of the Review-Journal and writes about the role of the press and free speech. He may be contacted at 383-0261 or via e-mail at tmitchell@reviewjournal.com.