The board will meet Monday to decide whether to suspend the order that took the Cranston mayor off the air.

01:00 AM EDT on Friday, June 10, 2005

BY DANIEL BARBARISI
Journal Staff Writer

BOSTON -- A panel of federal judges yesterday urged the state Board of Elections to meet immediately and vote to allow Cranston Mayor Stephen P. Laffey back on the air until the question of whether he can host a commercial radio show can be heard in a state court.

The Elections Board will meet Monday morning, and let the court know of its decision by 2 p.m. If the board does not vote to reinstate Laffey, the federal court gave strong indications that it would step in and order that he be allowed to return to the airwaves.

In April, the Board of Elections issued a ruling removing Laffey from his WPRO-AM call-in show, on the grounds that the free airtime constituted an illegal in-kind contribution from a corporation. Laffey went to U.S. District Court asking to be allowed back on, was denied by Judge Mary M. Lisi, and appealed to the U.S. 1st Circuit Court of Appeals, arguing that his First Amendment rights had been violated.

The three-member panel of Circuit Court judges said at a hearing yesterday that while there are certainly First Amendment questions in play, a set of "murky" state election laws makes ruling on them difficult.

The judges said that the federal courts are not the proper venue for examining the problems in those laws; those issues need to be resolved by the Rhode Island Supreme Court -- and until they are, Laffey should be allowed back on the air.

But rather than grant Laffey a temporary injunction allowing him to return to hosting the talk show, the judges strongly suggested to the Board of Elections that it promise Laffey that the order keeping him off the radio will be suspended until the state Supreme Court can rule on his case -- effectively allowing him to return to the airwaves.

Members of the panel implied that if the board doesn't allow Laffey back on the air while the case goes through the courts, the court will do it for them. Judge Bruce Selya said that if the board takes no action, the court may put its "thumb on the scale" and tip it in that direction.

Laffey said that if the board goes along with the court, he will probably seek to return to the airwaves next Friday.

"If WPRO will have me, sure," he said.

Both sides claimed victory of a sort yesterday. Laffey said that he will get what he wanted -- to return to radio.

"When they told me that I couldn't speak on the radio, I was very, very unhappy. I thought I had every right, still think I have every right, to express my views, in a business relationship with a radio station."

The Elections Board, meanwhile -- while acknowledging that Laffey's return to radio is a blow -- said that it has wanted this issue decided in the state courts all along.

"I think we're encouraged by that, that the state court is going to have the opportunity to rule on this," Elections Board Chairman Roger Begin said.

"I think the court spoke, and we're going to listen, and we'll meet on Monday and make some decisions."

The federal judges said that they wanted this handled with as much speed as possible. The board said it would hold a meeting as soon as the state Open Meetings Law allowed. Selya said that was not quick enough. Don't its bylaws allow it to circumvent the Open Meetings Law in emergency situations, he asked, receiving an affirmative response.

"Well, I think this is an emergency situation," Selya said.

During the 45-minute hearing yesterday, neither side had much chance to make its primary legal argument: for Laffey, that the Board of Elections had violated his freedom of speech by preventing him from hosting the program; for the board, that it was not censoring speech, but rather regulating an illegal campaign contribution to which speech was incidental.

To begin with, the judges said, the Board of Elections overstepped its bounds when it issued its blanket order taking Laffey off the air. The board, according to state law, has no enforcement authority: it can either order the attorney general to go to Superior Court to take Laffey off the air, or it can prosecute Laffey in District Court for accepting illegal campaign contributions. But it cannot unilaterally remove him.

In addition, a number of the terms that the board used to make its ruling are vague or poorly defined in state law. For instance, there is no definition of what an "in-kind contribution" is, and what the judges felt were incomplete definitions of "campaign contribution," and "political candidate."

In fact, the extremely broad definition of a candidate may be at the heart of the matter. State law defines a candidate as anyone who undertakes any action "with a view to bringing about his or her nomination or election to any public office," whether or not the person is an announced candidate or whether they are seeking a particular office.

Yet the Board of Elections used these laws, which 1st Circuit Judge Sandra Lynch called murky, to remove Laffey from the radio, when even the board itself acknowledges the laws may be too vague. This, she said, is not enough of a legal leg to stand on if there is a chance that it violated his First Amendment rights.

"There is danger in using ambiguous state laws and enforcing them," Lynch said.

The Elections Board's attorney agreed that its laws might need clarification.

"There are terms in the statutes that have yet to be defined by the Supreme Court," said Raymond Marcaccio, attorney for the Elections Board. "How the Supreme Court says contributions should be applied has never been addressed. And that's what we're saying -- determine how that term, contribution, as well as candidate, should be addressed and applied by this board."

The Steve Laffey Show debuted on WPRO-AM in late February, and covered a variety of topics, political and otherwise, in a 2-hour 45-minute time slot on Friday mornings. The second-term Cranston mayor, 43, was not paid for hosting the program.