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Free Kirby, Free Speech

Over at National Review, the editors urge: Free Kirby Wilbur!

Yes, the man with two first names is in a pickle over in Washington state. As I mentioned earlier this week, Wilbur is in the middle of perhaps the most important free-speech case currently ongoing in America: The outcome of this case could set a precedent where speech on the radio -- by radio hosts speaking their minds -- would be considered a "campaign contribution" under the law.

Specifically, Wilbur and his co-host, John Carlson of Seattle's KVI-AM, were vocal opponents of an initiative to impose a gas tax in Washington state last year (the initiative won despite their opposition, the gas tax was imposed). Agents of the government, with a financial interest in the ballot initiative carrying, filed suit to force Wilbur and Carlson's radio station to report their air time as an in-kind contribution to the anti-gas-tax campaign. The fact that the hosts helped collect money and signatures was used as evidence that they should be considered part of the campaign, as opposed to citizens simply speaking about it -- magically converting their "speech" into a "contribution."

A trial court judge decided this was a compelling argument. The air time was assigned a value, and the reporting was made. Now, the Institute for Justice is challenging the trial-court finding in the Washington State Supreme Court. For those who don't immediately see the significance: If speech has a monetary value, it has to be reported; and, far more importantly, it can be limited just like any other cash contribution.

Oral arguments in the case took place on June 8, and can be viewed online here.

I spoke to IJ attorney Michael Bindas on Friday, and here's the status of the case:

Time frame: There's no telling when the court will issue a decision, but the justices seemed to understand there is some urgency. There are, of course, elections this year. And the uncertainty surrounding the issue of whether radio speech can count as a campaign contribution needs to be resolved.

Next step: If the Washington State Supreme Court's decision were adverse to the defendants (for our purposes, let's call them "the good guys"), the appeal would be to the U.S. Supreme Court.

Precedent: To IJ's knowledge, the trial court was the first ever to treat "pure political speech essentially as a monetary contribution." There have been FEC complaints where radio stations have been targeted under a similar theory to that in the Washington state radio case, by politicians unhappy with talk show hosts' coverage. The FEC has uniformly rebuffed these complaints.

So, that's where things are. Keep your eyes peeled.