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Postman on Politics

Chief political reporter David Postman explores state, regional and national politics.

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October 4, 2007 11:04 AM

Court says state can't stop campaign lies

Posted by David Postman

A divided opinion by the state Supreme Court this morning struck down Washington's truth in campaigning law. In a 5-4 decision, the court said the law, specifically amended by the Legislature in an attempt to carve out a constitutional prohibition against campaign lies, is a clear violation of the First Amendment. Justice James Johnson was joined in the majority opinion by Charles Johnson, Susan Owens, Richard Sanders and Chief Justice Gerry Alexander, who wrote a separate concurrence but agreed with the majority's result. Johnson wrote:

The notion that the government, rather than the people, may be the final arbiter of truth in political debate is fundamentally at odds with the First Amendment. Because RCW 42.17.530(1)(a) rests on the validity of this erroneous assumption, it must be struck down.

The case stems from the 2002 campaign season when Marilou Rickert challenged Sen. Tim Sheldon. Rickert accused Sheldon in a mailing of voting to close a facility for the developmentally disabled. Sheldon said that was false, filed a complaint with the Public Disclosure Commission, and Rickert was eventually found in violation of the law.

Today's ruling upholds a state Court of Appeals decision from 2005.

The Supreme Court majority said:

Particularly relevant here is the fundamental First Amendment principle forbidding censorship or coerced silence in the context of political debate. "The First Amendment exists precisely to protect against laws . . . which suppress ideas and inhibit free discussion of governmental affairs." Id. at 627; see also White, 536 U.S. at 774 (political speech is "'at the core of our First Amendment freedoms'" (quoting Kelly, 247 F.3d at 861)). Hence, the Sedition Act of 1798, which censored speech about government, has been subject to nearly unanimous historical condemnation. See, e.g., New York Times, 376 U.S. at 274. For similar reasons, RCW 42.17.530(1)(a) is deserving of condemnation, lacks a compelling justification, and thus must be declared unconstitutional.

The court said the law is not only unconstitutional, but unnecessary.

In the case at bar, Ms. Rickert made knowingly false or reckless statements about Senator Sheldon, a man with an outstanding reputation. Senator Sheldon and his (many) supporters responded to Ms. Rickert's false statements with the truth. As a consequence, Ms. Rickert's statements appear to have had little negative impact on Senator Sheldon's successful campaign and may even have increased his vote. ... Were there injury to Senator Sheldon's reputation, compensation would be available through a defamation action. As it is, Ms. Rickert was singled out by the PDC for punishment, six months after the election, based on statements that had no apparent impact on the government interests allegedly furthered by the statute. That the statute may be applied in such a manner proves that it is fatally flawed under the First Amendment.

The dissent was written by Justice Barbara Madsen and signed by Tom Chambers, Mary Fairhurst and Bobbe Bridge. Madsen argues that the majority misreads precedents and goes way too far in throwing out the law.

Unfortunately, the majority's decision is an invitation to lie with impunity. The majority opinion advances the efforts of those who would turn political campaigns into contests of the best stratagems of lies and deceit, to the end that honest discourse and honest candidates are lost in the maelstrom. The majority does no service to the people of Washington when it turns the First Amendment into a shield for the "unscrupulous . . . and skillful" liar to use knowingly false statements as an "effective political tool" in election campaigns.


The majority is also wrong when it asserts that the only time that a false
statement about a candidate for office can be burdened is when the statement
constitutes civil defamation, actionable in tort law. This premise is no more
accurate than the majority's conclusion that government cannot regulate political speech by proscribing the known lie.

Madsen also wrote that the majority's standard that only lies where actual malice can be proven means there cannot be any controls.

Further, the majority refuses to recognize that the actual malice standard is an exceedingly high standard to meet. Most political speech does not even approach being subject to regulation under this standard; the standard prohibits only the very worst untruths — those made with knowledge of their falsity or with reckless disregard to truth or falsity. In addition, the burden of proof is also high — proof must be by clear and convincing evidence. The actual malice standard is deliberately difficult to satisfy, precisely because free speech rights are at issue. Therefore, much nuanced speech, and all speech that constitutes opinion rather than fact, will simply fall short of it.

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