Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Monday, October 8, 2007

Washington Supreme Court Strikes Down Statute Forbidding Campaign Falsehoods

The Washington Supreme Court has held that a Washington statute forbidding the "sponsoring, with actual malice, a political advertisement containing a false statement of material fact about a candidate for public office" is unconstitutional under both the federal and state constitutions.

In 2002 a candidate for state senate, Marilou Rickert, sponsored a campaign brochure comparing her positions to incumbent State Senator Tim Sheldon's positions. Senator Sheldon won the election and later challenged her characterizations of his record under the existing statute. The Public Disclosure Commission, the agency charged with investigating electioneering complaints, upheld his challenge and fined her one thousand dollars. A trial court affirmed the decision, but the Court of Appeals reversed, holding that the statute could not survive strict scrutiny. The Supreme Court has now affirmed.

"The text of RCW 42.17.530(1)(a) suggests that the legislature may have intended to limit the scope of its prohibition to the unprotected category of political defamation speech identified by the United States Supreme Court in New York Times Co. v. Sullivan....However, as correctly noted by the Court of Appeals, "[U]nder New York Times, only defamatory statements . . . are not constitutionally protected speech."  Rickert, 129 Wn. App. at 461.  Because RCW 42.17.530(1)(a) does not require proof of the defamatory nature of the statements it prohibits, its reach is not limited to the very narrow category of
unprotected speech identified in New York Times and its progeny.  Thus, RCW 42.17.530(1)(a) extends to protected political speech and strict scrutiny must apply....The plain language of RCW 42.17.530(1)(a) provides that the law's purpose is "to provide protection for candidates for public office." ... Legislators apparently concluded this was a sufficient state interest to support the statute based on the concurring opinion of Justice Madsen in 119 Vote No! Committee, 135 Wn.2d at 635-36 (Madsen, J., concurring)....The present case provides an opportunity to reiterate the fundamental principles enunciated by the lead opinion in 119 Vote No! Committee, 135 Wn.2d 618, and to clarify that neither statements about political issues nor those about candidates may be censored by the government under a scheme like RCW 42.17.530(1)(a). In the case at bar, as in 119 Vote No! Committee, the State claims that "it may prohibit false statements of fact contained in political advertisements." ...However, "[t]his claim presupposes the State possesses an independent right to determine truth and falsity in political debate," a proposition fundamentally at odds with the principles embodied in the First Amendment....  Moreover, it naively assumes that the government is capable of correctly and consistently negotiating the thin line between fact and opinion in political speech.  Yet, political speech is usually as much opinion as fact. As aptly summarized by the Supreme Court, quoted by the lead opinion in 119 Vote No! Committee, "'[E]very person must be his own watchman for truth, because the forefathers did not trust any government to separate the truth from the false for us.'"...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."...Hence, the Sedition Act of 1798, which censored speech about government, has been subject to nearly unanimous historical condemnation. ...  For similar reasons, RCW 42.17.530(1)(a) is deserving of condemnation, lacks a compelling justification, and thus must be declared unconstitutional."

Read the entire ruling here. The case is Rickert v. Pub. Disclosure Comm'n, Docket no. 77769-1. Read more about the background of the case in a New York Times article by Adam Liptak here.

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