Split court says candidates can lie

OLYMPIA — Government has no business trying to stop political candidates from deliberately lying about each other in campaign ads, a divided state Supreme Court ruled Thursday.

In the 5-4 decision upholding a lower-court ruling, the high court said a state law aimed at punishing political candidates for false advertising is an unconstitutional infringement on free speech.

"There can be no doubt that false personal attacks are too common in political campaigns, with wide-ranging detrimental consequences," Justice Jim Johnson wrote for the majority. "However, government censorship ... is not a constitutionally permitted remedy."

But in a sharply worded dissent, Justice Barbara Madsen called the majority's ruling "an invitation to lie with impunity. ... It is little wonder that so many view political campaigns with distrust and cynicism."

The case stems from a 2002 state Senate race in the 35th Legislative District, which covers Mason and parts of Thurston, Grays Harbor and Kitsap counties.

During the campaign, Green Party candidate Marilou Rickert sent voters a brochure claiming the longtime incumbent, Democrat Tim Sheldon, "voted to close a facility for the developmentally challenged."

Sheldon, in fact, had twice voted against a budget that closed the facility.

After the election, which Sheldon won easily, he filed a complaint with the state Public Disclosure Commission. He said Rickert had violated a state law that prohibited candidates from sponsoring "with actual malice" political advertising that "contains a false statement of material fact about a candidate for public office."

The PDC sided with Sheldon. It said Rickert had acted with "reckless disregard" for the truth and slapped her with a $1,000 fine, the maximum.

Rickert appealed and, in 2005, the state Court of Appeals struck down the law, which the Legislature had enacted in 1999 after a similar statute was overturned by the Supreme Court.

In Thursday's Supreme Court ruling, Johnson said, "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."

Citing U.S. Supreme Court rulings, Johnson said only defamatory statements are not constitutionally protected, and that the new law does not distinguish between defamatory and simply false statements.

And he pointed out that Rickert's statements "appear to have had little negative impact on Senator Sheldon's successful campaign and may have even increased his vote."

Madsen, however, said the federal court has made it clear that "the use of calculated falsehood is not constitutionally protected" speech.

She also noted that the "actual malice" standard in Washington's law was an extremely high legal bar meant to prohibit "only the very worst untruths — those made with knowledge of their falsity or with reckless disregard to truth or falsity."

She warned that the majority's ruling "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."

Thursday's ruling doesn't prohibit a candidate from filing a defamation suit over another candidate's false and damaging advertising, although such suits can be difficult to win.

Madsen was joined by Justices Bobbe Bridge, Tom Chambers and Mary Fairhurst.

Johnson was joined in the majority by Justices Susan Owens, Richard Sanders and Charles Johnson.

Chief Justice Gerry Alexander also sided with the majority. But in a separate concurrence, he seemed to leave the door open for further interpretation.

While Alexander agreed the state law was unconstitutional, he said the majority "goes too far in concluding that any government censorship of political speech would run afoul of the First Amendment."

Lori Anderson, spokeswoman for the PDC, said the commission will discuss how to respond to the ruling during its next meeting later this month.

The commission could ask the court to reconsider its decision, or appeal to the U.S. Supreme Court.

It could also ask the Legislature to take another crack at passing a narrower law.

Sheldon, a conservative Democrat who for years has withstood attacks from his own party, said the ruling "leaves the door wide open for all kinds of fabrication. ... There's now no standard at all for telling the truth in political campaigns."

But the ruling was praised by the American Civil Liberties Union, which represented Rickert in her appeal.

ACLU spokesman Doug Honig said government should have no role in deciding which campaign statements are true or false.

To illustrate, Honig pointed out that, during the Vietnam War, the government insisted that the U.S. was not bombing Cambodia.

"So a candidate who maintained that we were in fact bombing Cambodia would, in the eyes of the government, be telling a lie," Honig said.

Ralph Thomas: 360-943-9882 or rthomas@seattletimes.com