State Supreme Court Justice Jim Johnson got feisty last week when the court unanimously demolished an attempt to muzzle anti-tax radio commentary.
The case – see here for our editorial – involved two KVI talk radio hosts, John Carlson and Kirby Wilbur, who were on the airwaves touting an initiative to overturn the 2005 gas tax. A county and three cities sued to force the campaign to declare their commentary as in-kind donations, and a Thurston County court obligingly issued an injunction against the campaign.
Johnson and Justice Richard Sanders, who signed Johnson’s concurring opinion, constitute the libertarian-right wing of an otherwise largely liberal high court. Sanders, especially, is wary of government. But they tend to quickly spot and cite fundamental constitutional issues, as in the following excerpt from Johnson’s opinion:
… the chilling effect upon the exercise of First Amendment rights may derive from the threat of prosecution, and not just by the prospects of its success. Here, the injunction’s erroneous characterization of the commentary as an in-kind “contribution” placed defendants in jeopardy of prosecution at a later date, and the only way to completely mitigate the risk was self-imposed silence.