No lie, state Supreme Court rules candidates can make false statements

OLYMPIA — A sharply divided state Supreme Court has ruled that a law that bars political candidates from deliberately making false statements about their opponents violates the First Amendment right of free speech.

In a 5-4 ruling, the high court affirmed a state Court of Appeals ruling that overturned the law. The measure was enacted by the Legislature in 1999, a year after a similar ban on false statements involving initiatives and other ballot measures was thrown out by the state Supreme Court.

State Sen. Tim Sheldon, D-Potlatch, invoked the law in 2002 after his Green Party challenger, Marilou Rickert, distributed a flier that asserted Sheldon voted to shut down a state institution in his district. In fact, he voted against a budget that included closure of the Mission Creek youth camp, although critics said he didn't do enough to support the facility.

He filed a complaint with the state Public Disclosure Commission, which investigated and imposed the maximum fine, $1,000. By then, Sheldon had easily won re-election. The commission action was upheld in Superior Court, but overturned by the appeals bench.

The Supreme Court majority said the new law "like its predecessor, is unconstitutional on its face."

"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," Justice James Johnson wrote for the majority, joined by Justices Charles Johnson, Richard Sanders and Susan Owens.

Chief Justice Gerry Alexander joined the majority as well, but in a separate concurrence. He wrote that, "the majority goes too far in concluding that any government censorship of political speech would run afoul of the United States and Washington constitutions," but agreed that the law was unconstitutional because it was overbroad.

The dissent called the majority decision "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," Justice Barbara Madsen wrote in the dissent, joined by Justices Tom Chambers, Mary Fairhurst and Bobbe Bridge.

The justices disagreed over the interpretation of a 1964 U.S. Supreme Court ruling in New York Times Co. v. Sullivan, in which the court found a public official claiming libel must prove that the libel was published with "actual malice."

The majority said that under that ruling, only defamatory statements are not constitutionally protected speech, and that the new law does not require proof of the defamatory nature of the prohibited statements. Thus, the current law "extends to protected political speech and strict scrutiny must apply."

The majority opinion noted that another U.S. Supreme Court ruling, Time Inc. v. Hill, indicated that false statements about private individuals made with actual malice, but which are not defamatory, may not be protected speech.

"However, the court has not held that false statements about public figures made with actual malice, but which are not defamatory, are devoid of all constitutional protection," the opinion said.

Madsen, writing in the dissent, argued that the U.S. Supreme Court "has made it absolutely clear that the deliberate lie in political debate has no protected place under the First Amendment because such lies do not advance the free political process but rather subvert it."

She wrote that the majority is 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.

"This premise is no more accurate than the majority's conclusion that government cannot regulate political speech by proscribing the known lie."

Madsen argued that false speech made with "actual malice" is not constitutionally protected. She also noted that the standard is exceedingly high, and most political speech does not meet it.

"The standard prohibits only the very worst untruths _ those made with knowledge of their falsity or with reckless disregard to truth or falsity," she wrote. "The actual malice standard is deliberately difficult to satisfy, precisely because free speech rights are at issue."

PDC spokeswoman Lori Anderson said the commission next meets on Oct. 25, at which point they will discuss options, including whether to appeal to the U.S. Supreme Court.

Sheldon said he was disappointed in the ruling, and said it would open the door to "all kinds of negative campaigning.

"There's no downside to lying," he said. "The voters are going to be even more turned off by politics. They're going to not participate as much."

Rickert did not immediately return a call seeking comment.

The American Civil Liberties Union spokesman Doug Honig said that the law, "however well-intentioned, wrongly tried to put the government in the position of trying to determine what was true or false in campaign statements, and that doesn't work."

The case is No. 77769-1, Marilou Rickert vs. state of Washington and PDC.