IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON ex rel.
PUBLIC DISCLOSURE COMMISSION,
Appellant,
v.
119 VOTE NO! COMMITTEE, EILEEN
BROWN, Executive Director, THOMAS
FINCH, Treasurer,
Respondents,
AMERICAN CIVIL LIBERTIES UNION OF
WASHINGTON, a Washington
nonprofit corporation, on behalf
of itself and its members,
Respondents,
v.
IRENE HENINGER, JOCELYN
MARCHISIO, JIM WHITESIDE, DON
BRAZIER, and GARY MACHARA,
Commissioners, WASHINGTON STATE
PUBLIC DISCLOSURE COMMISSION, in
their official capacity; and
CHRISTINE O. GREGOIRE, Attorney
General of the State of
Washington, in her official
capacity,
Defendants.
No. 64332-6
En Banc
Filed June 11, 1998
SANDERS, J. The Public Disclosure Commission (PDC) alleges the
119 Vote No! Committee violated RCW 42.17.530(1)(a) by publishing false
political advertising. We must decide two issues: does RCW 42.17.530(1)(a)
violate the First Amendment on its face; and, if not, did the subject
advertisement violate the statute. As we conclude, RCW 42.17.530(1)(a)
indeed facially violates the First Amendment the second question falls by
the way.
I. Facts
The State of Washington on relation of the Public Disclosure
Commission brought suit against the 119 Vote No! Committee, its executive
director and its treasurer. The State alleges the Committee published
political advertising contrary to RCW 42.17.530(1)(a) during the course of
its campaign in opposition to Initiative 119, the so-called "Death with
Dignity Act." Ultimately the initiative went down to defeat at the polls
on November 5, 1991. The one-page printed advertisement begins with the
words "Vote No!" superimposed over the words "Initiative 119," Clerk's
Papers (CP) at 18, and generally suggests the initiative invites assisted
suicide without sufficient safeguards.1
RCW 42.17.530(1)(a) prohibits any person from sponsoring, with actual
malice, a political advertisement containing a false statement of material
fact.2 The State's complaint alleged the advertisement distributed by the
Committee "contained false statements of material fact, and was published
by the Committee with actual malice, that is, with knowledge that the
statements contained in the advertisement were false or in reckless
disregard of whether the statements were false." CP at 6. The PDC's
referral arose from a complaint filed by proponents of the initiative. The
State's complaint prayed the Committee and individual defendants be fined
up to $10,000 plus costs, attorney fees, and treble damages.
The Committee moved to dismiss for failure to state a claim for which
relief could be granted. CR 12(b)(6). The American Civil Liberties Union
of Washington (ACLU) intervened pursuant to CR 24 to challenge the facial
constitutionality of RCW 42.17.530(1)(a) by declaratory judgment.3
Following briefing and argument, the trial court concluded the
advertisement did not contain materially false statements and dismissed.
The trial court awarded the Committee attorney fees and costs pursuant to
RCW 42.17.400(5).4
Notwithstanding dismissal of the principal action against the
Committee, the ACLU pursued its claim for a declaratory judgment of
invalidity.5 The ACLU and the State cross-moved for summary judgment each
seeking a declaration as to the statute's constitutionality under the First
Amendment. On stipulated facts concerning the enforcement of RCW
42.17.530(1)(a) the court granted the State's motion, concluding the
statute facially passed First Amendment muster. Both parties appealed. We
granted direct review.
II. Standard of Review
"Under CR 12(b)(6), a complaint can be dismissed if it fails to state
a claim upon which relief can be granted. Because a trial court's
dismissal under this rule is a holding on a question of law, appellate
review is de novo." Hoffer v. State, 110 Wn.2d 415, 420, 755 P.2d 781
(1988). Likewise, the facial constitutionality of a statute is a question
of law which requires de novo review. Timberline Air Serv. Inc. v. Bell
Helicopter-Textron, Inc., 125 Wn.2d 305, 311, 884 P.2d 920 (1994).
III. Legal Analysis
RCW 42.17.530(1)(a) provides: "It is a violation of this chapter for
a person to sponsor with actual malice . . . {p}olitical advertising that
contains a false statement of material fact . . . ." The Committee and the
ACLU argue the statute is a facially unconstitutional abridgment of free
speech. The State asserts its interest in an informed electorate justifies
this burden upon political debate.
The constitutional guarantee of free speech has its "fullest and most
urgent application" in political campaigns. Brown v. Hartlage, 456 U.S.
45, 53, 102 S. Ct. 1523, 71 L. Ed. 2d 732 (1982) (quoting Monitor Patriot
Co. v. Roy, 401 U.S. 265, 271-72, 91 S. Ct. 621, 28 L. Ed. 2d 35 (1971)).
Therefore, the State bears a "well-nigh insurmountable" burden to justify
RCW 42.17.530's restriction on political speech. Meyer v. Grant, 486 U.S.
414, 425, 108 S. Ct. 1886, 100 L. Ed. 2d 425 (1988). This burden requires
the court to apply "exacting scrutiny" to RCW 42.17.530(1)(a). Meyer, 486
U.S. at 420. See also Buckley v. Valeo, 424 U.S. 1, 39, 96 S. Ct. 612, 46
L. Ed. 2d 659 (1976). Exacting scrutiny will invalidate the statute unless
the State demonstrates a compelling interest that is both narrowly tailored
and necessary. McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 347, 115
S. Ct. 1511, 1519, 131 L. Ed. 2d 426 (1995); Burson v. Freeman, 504 U.S.
191, 198, 112 S. Ct. 1846, 119 L. Ed. 2d 5 (1992). Such burdens are rarely
met. Burson, 504 U.S. at 199-200. Ino Ino, Inc. v. City of Bellevue, 132
Wn.2d 103, 114, 937 P.2d 154 (1997) ("The State bears the burden of
justifying a restriction on speech.").
A. RCW 42.17.530(1)(a) infringes on speech protected
by the First Amendment
Uninhibited speech "`is the single most important element upon which
this nation has thrived.'" Nelson v. McClatchy Newspapers, Inc., 131 Wn.2d
523, 536, 936 P.2d 1123 (quoting Guzick v. Drebus, 305 F. Supp. 472, 481
(N.D. Ohio 1969), aff'd, 431 F.2d 594 (6th Cir. 1970), cert. denied, 401
U.S. 948, 91 S. Ct. 941, 28 L. Ed. 2d 231 (1971)), cert. denied, 118 S. Ct.
175 (1997). Free speech is revered as the "Constitution's majestic
guarantee," central to the preservation of all other rights. Id. at 536.
Advocacy of one's political views through leafleting lies at the very core
of our First Amendment freedoms. McIntyre, 514 U.S. at 346-47; Meyer, 486
U.S. at 421-22.
The State asserts it may prohibit false statements of fact contained
in political advertisements. This claim presupposes the State possesses an
independent right to determine truth and falsity in political debate.
However, the courts have "consistently refused to recognize an exception
for any test of truth whether administered by judges, juries, or
administrative officials and especially one that puts the burden of proving
truth on the speaker." New York Times Co. v. Sullivan, 376 U.S. 254, 271,
84 S. Ct. 710, 11 L. Ed. 2d 686, 95 A.L.R.2d 1412 (1964).
Rather, the First Amendment operates to insure the public decides what
is true and false with respect to governance. Meyer, 486 U.S. at 419-20;
Riley v. National Fed. of the Blind of North Carolina, Inc., 487 U.S. 781,
791, 108 S. Ct. 2667, 101 L. Ed. 2d 669 (1988). In Meyer, the Supreme
Court explained:
"`The very purpose of the First Amendment is to foreclose public
authority from assuming a guardianship of the public mind . . . .
In this field every person must be his own watchman for truth,
because the forefathers did not trust any government to separate
the true from the false for us.' Thomas v. Collins, {323 U.S.
516, 545 (1945)} (Jackson, J., concurring)}." {Grant v. Meyer,
828 F.2d 1446, 1455 (10th Cir. 1987)}.
Meyer, 486 U.S. at 419-20 (emphasis added).
Particularly in the religious and political realms, "the tenets of one
man . . . seem the rankest error to his neighbor." Cantwell v.
Connecticut, 310 U.S. 296, 310, 60 S. Ct. 900, 84 L. Ed. 2d 1213, 128
A.L.R. 1352 (1940). Therefore, the Supreme Court has recognized that to
sustain our constitutional commitment to uninhibited political discourse,
the State may not prevent others from "resort{ing} to exaggeration, to
vilification of men who have been, or are, prominent in church and state,
and even to false statement." Id. (emphasis added). At times such speech
seems unpalatable, but the value of free debate overcomes the danger of
misuse. McIntyre, 514 U.S. at 357. For even false statements make
valuable contributions to debate by bringing about "the clearer perception
and livelier impression of truth, produced by its collision with error."
New York Times, 376 U.S. at 279 n.19 (quoting John S. Mill, On Liberty 15
(Oxford, Blackwell 1947)).
Specifically, the First Amendment prohibits the State from silencing
speech it disapproves, particularly silencing criticism of government
itself. Threats of coerced silence chill uninhibited political debate and
undermine the very purpose of the First Amendment. See Riley, 487 U.S. at
791; Brown, 456 U.S. at 61; Meyer, 486 U.S. at 419-20.
{The Founders of the nation} believed that freedom to think as
you will and speak as you think are means indispensable to the
discovery and spread of political truth. . . . Believing in the
power of reason as applied through the public discussion, they
eschewed silence coerced by law -- the argument of force in its
worst form.
Whitney v. California, 274 U.S. 357, 375-76, 47 S. Ct. 641, 71 L. Ed. 1095
(1927) (Brandeis, J., concurring), overruled on other grounds by
Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969).
See also New York Times, 376 U.S. at 270. The State cannot "substitute its
judgment as to how best to speak for that of speakers and listeners; free
and robust debate cannot thrive if directed by the government." Riley, 487
U.S. at 791. "For speech concerning public affairs is more than self-
expression; it is the essence of self government." Garrison v. Louisiana,
379 U.S. 64, 74-75, 85 S. Ct. 209, 13 L. Ed. 2d 125 (1964), overruled on
other grounds sub nom. by Curtis Publ'g Co. v. Butts, 388 U.S. 130, 87 S.
Ct. 1975, 18 L. Ed. 2d 1094 (1967).
Instead of relying on the State to silence false political speech, the
First Amendment requires our dependence on even more speech to bring forth
truth. Brown, 456 U.S. at 61. See also Gertz v. Robert Welch, Inc., 418
U.S. 323, 339-40, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974). In the
political context, a campaign's factual blunder is most likely noticed and
corrected by the campaign's political opponent rather than the State. Id.
Contrary to claims made by Justice Talmadge in his concurrence, the Supreme
Court has refused to recognize the possibility of "`an eleventh-hour
anonymous smear campaign'" as enough to justify a restriction on speech.
McIntyre, 514 U.S. at 352 n.16 (quoting People v. White, 116 Ill. 2d 171,
506 N.E.2d 1284, 1288, 107 Ill. Dec. 229 (1987)). Moreover, a well-
publicized, yet bogus, complaint to the PDC on election eve raises the same
concern. Therefore, "{t}he preferred First Amendment remedy of `more
speech, not enforced silence' thus has special force." Brown v. Hartlage,
456 U.S. 45, 61, 102 S. Ct. 1523, 1533, 71 L. Ed. 2d 732 (1982) (citation
omitted). Underlying our dependence upon more speech is the presupposition
"that right conclusions are more likely to be gathered out of a multitude
of tongues, than through any kind of authoritative selection. To many this
is, and always will be, folly; but we have staked upon it our all.'" New
York Times, 376 U.S. at 270 (quoting United States v. Associated Press, 52
F. Supp. 362, 372 (S.D.N.Y. 1943)).
RCW 42.17.530 coerces silence by force of law and presupposes the
State will "separate the truth from the false" for the citizenry. The
government made a similar attempt to suppress "seditious libel" in the
Sedition Act of 1798, 1 Stat. 596. New York Times, 376 U.S. at 273. That
Act made it a crime for any person to write, print, utter or publish any
false writings against the government. Id. at 273-74 (quoting 1 Stat.
596). The Act was vigorously condemned as unconstitutional because it
inevitably chilled that political debate needed for self-governance;
however, it was allowed to expire by its own terms in 1801 before judicial
challenge.6 Id. at 274, 276. The First Amendment exists precisely to
protect against laws such as RCW 42.17.530(1)(a) which suppress ideas and
inhibit free discussion of governmental affairs. See McIntyre, 514 U.S. at
357; Mills v. Alabama, 384 U.S. 214, 218, 86 S. Ct. 1434, 16 L. Ed. 2d 484
(1966).
Even assuming, as per Justice Talmadge's concurrence, that malicious
falsehoods against candidates are beyond constitutional protection, this
statute has broader reach and brings within its sweep every maliciously
false statement of "material fact" whether it is defamatory to an
individual or not. Justice Talmadge's concurrence cites no authority to
support its broad claim that all false statements in a political
advertisement, including statements relating to issues campaigns, may be
prohibited as unprotected speech. Moreover, the statutory requirement that
malice be proved by a high standard of proof does not cure the infirmity as
the chilling effect of possible governmental sanction will not be lost on
the faint of heart.
B. RCW 42.17.530(1)(a) does not serve a compelling state interest
Because RCW 42.17.530(1)(a) infringes upon protected speech, the court
must apply "exacting scrutiny." The State bears the "well-nigh
insurmountable" burden to prove a compelling interest that is both narrowly
tailored and necessary to achieve the State's asserted interest. McIntyre
v. Ohio Elections Comm'n, 514 U.S. 334, 347, 115 S. Ct. 1511, 1519, 131 L.
Ed. 2d 426 (1995); Burson, 504 U.S. at 198. States rarely meet this heavy
burden. Burson, 504 U.S. at 199-200.
The State claims its interest to foster an informed electorate outweighs
the imposition upon political expression by RCW 42.17.530(1)(a). The State
relies heavily on defamation cases to prove a compelling interest to
justify intrusion into public debate citing Gertz, 418 U.S. at 340, which
states: "{T}here is no constitutional value in false statements of fact.
Neither the intentional lie nor the careless error materially advances
society's interest in `uninhibited, robust, and wide-open' debate on public
issues." See also Garrison, 379 U.S. at 75 (quoting New York Times Co.,
376 U.S. at 270). The State argues the language in these defamation cases
applies with equal force to all political speech, even if no one is
defamed.7
However the State's reliance on the law of defamation is misplaced.
By its nature defamation concerns statements made by one person against
another and is designed to protect the property of an individual in his or
her good name.
The legitimate state interest underlying the law of libel is
the compensation of individuals for the harm inflicted on them by
a defamatory falsehood. . . . {T}he individual's right to the
protection of his own good name "reflects no more than our basic
concept of the essential dignity and worth of every human being a
concept at the root of any decent system of ordered liberty."
Gertz, 418 U.S. at 341 (quoting Rosenblatt v. Baer, 383 U.S. 75, 92, 86 S.
Ct. 669, 15 L. Ed. 2d 597 (1966) (Stewart, J., concurring)). Clearly, a
competing interest exists in defamation cases which is absent here. As
then-Professor Fried explained:
Free speech cases often explain that "{t}here is no such thing as
a false idea." But why may the state intervene to prohibit or
punish factually false statements? Defamation and deception are
actionable wrongs, perhaps on the reasoning I have already
offered: they vindicate private rights invoked by, or at least
on behalf of, private individuals. But the First Amendment
precludes punishment for generalized "public" frauds, deceptions
and defamation. In political campaigns the grossest
misstatements, deceptions, and defamations are immune from legal
sanction unless they violate private rights that is, unless
individuals are defamed.{8}
Charles Fried, The New First Amendment Jurisprudence: A Threat to Liberty,
59 U. Chi. L. Rev. 225, 238 (1992) (footnotes omitted).
However RCW 42.17.530(1)(a) restricts political speech absent the
competing interest present in defamation cases, and, unlike a defamation
suit, creates a cause of action for the government to pursue against a
private person. "The legitimate state interest underlying the law of libel
is the compensation of individuals for the harm inflicted on them for
defamatory falsehood." Gertz, 418 U.S. at 341. See also Rosenblatt, 383
U.S. at 93 ("{A}n action for damages is the only hope for vindication or
redress the law gives to a man whose reputation has been falsely
dishonored.").
Additionally, the State relies upon the United States Supreme Court's
decision in McIntyre, as well as this court's decision in In re Donohoe, 90
Wn.2d 173, 580 P.2d 1093 (1978), to support its contention that it has a
compelling interest to regulate maliciously false speech. But neither case
supports its claim.
In McIntyre the Supreme Court held a statute prohibiting anonymous
leaflets violated the First Amendment. The Court noted Ohio's Elections
Code contained detailed prohibitions against making false statements. 514
U.S. at 349. Therefore the State asserts McIntyre impliedly suggested laws
prohibiting false political statements are constitutional.
However the inference to be drawn from McIntyre is just the opposite.
McIntyre explained that speech made in the heat of a political contest
receives more protection than any other form of political speech. Id. at
347. The state in McIntyre argued the speech restrictions were necessary
because false advertising might be distributed as "an eleventh-hour
anonymous smear campaign." Id. at 353 n.16. The Court explained the
statute could not be upheld on that ground because it swept within it
speech unrelated to the state's concern. Id. Describing the statute's
unconstitutional breadth, the Court distinguished between literature
supporting or opposing candidates from referenda as "{a} public question
clearly cannot be the victim of character assassination." Id. McIntyre
indicates the State does not possess an independent right to determine
truth and falsity in public issues.9
In Donohoe a judicial candidate made numerous allegedly false
statements regarding incumbent judges. The Court disciplined the candidate
claiming the State possessed a unique interest in maintaining the integrity
of the judiciary. 90 Wn.2d at 180. However the continuing viability of
this precedent is questionable in light of more recent authority which
prompted 1995 revisions to the Code of Judicial Conduct. See, e.g.,
Buckley v. Illinois Judicial Inquiry Bd., 997 F.2d 224 (7th Cir. 1993).
Justice Talmadge's concurrence quotes Burson v. Freeman, 504 U.S. at 199-
200, to suggest the State possesses a compelling interest in "ensuring the
integrity of the electoral process." Concurrence (Talmadge, J.) at 21.
However, Burson is distinguishable as the statute there dealt with whether
campaign materials could be displayed near the entrance to a polling place.
The Court did not find a compelling interest to allow the State to
determine the truth and falsity of political speech on campaign issues.
Moreover, the false statements in Donohoe were directed at another
candidate, not statements in an initiative campaign as is the case here.
Additionally, even if the State possessed a compelling interest here,
it must also prove the statute at issue is necessary to serve that
interest. Burson, 504 U.S. at 199-200. However, the record here
demonstrates RCW 42.17.530(1)(a) may be manipulated by candidates to impugn
the electoral process rather than promote truthfulness.
Ultimately, the State's claimed compelling interest to shield the
public from falsehoods during a political campaign is patronizing and
paternalistic.10 See Eu v. San Francisco County Democratic Cent. Comm., 489
U.S. 214, 223-24, 109 S. Ct. 1013, 103 L. Ed. 2d 271 (1989); Brown, 456
U.S. at 61. It assumes the people of this state are too ignorant or
disinterested to investigate, learn, and determine for themselves the truth
or falsity in political debate, and it is the proper role of the government
itself to fill the void. This assumption is especially flawed in cases
like this where the truth of the assertion may be readily tested against
the text of the initiative. At its worst the statute is pure censorship,
allowing government to undertake prosecution of citizens who, in their
view, have abused the right of political debate.
We therefore conclude RCW 42.17.530(1)(a) chills political speech,
usurps the rights of the electorate to determine the merits of political
initiatives without fear of government sanction, and lacks a compelling
state interest in justification.
IV. Conclusion
The First Amendment to the United States Constitution renders RCW
42.17.530(1)(a) facially unconstitutional. The ACLU is awarded its
reasonable attorney fees pursuant to 42 U.S.C. 1988 and the 119 Vote No!
Committee is awarded its reasonably attorney fees pursuant to RCW
42.17.400(5).
WE CONCUR:
FOOTNOTES
1 The leaflet stated in pertinent part:
Initiative 119: Vote No
IT WOULD LET DOCTORS END PATIENTS' LIVES WITHOUT BENEFIT OF SAFEGUARDS . .
.
Ü No special qualifications--
your eye doctor could kill you.
Ü No rules against coercion--
Nothing to prevent "selling" the idea to the aged, the poor,
the homeless.
Ü No reporting requirements--
No records kept.
Ü No notification requirements--
Nobody need tell family members beforehand.
Ü No protection for the depressed--
No waiting period, no chance to change your mind.
INITIATIVE 119 . . . IS A DANGEROUS LAW
VOTE NO ON INITIATIVE 119
Clerk's Papers (CP) at 18.
2 RCW 42.17.530 provides:
False political advertising
(1) It is a violation of this chapter for a person to sponsor with
actual malice:
(a) Political advertising that contains a false statement of
material fact;
(b) Political advertising that falsely represents that a
candidate is the incumbent for the office sought when in fact the candidate
is not the incumbent;
(c) Political advertising that makes either directly or
indirectly, a false claim stating or implying the support or endorsement of
any person or organization when in fact the candidate does not have such
support or endorsement.
(2) Any violation of this section shall be proven by clear and
convincing evidence.
3 The ACLU has standing to assert its claim on its own behalf. A statute
that chills a plaintiff's speech grants standing to that plaintiff and
presents a case ripe for adjudication. A plaintiff need not "expose
himself to actual arrest or prosecution" to challenge a statute which
deters the exercise of his constitutional rights. Steffel v. Thompson, 415
U.S. 452, 459, 94 S. Ct. 1209, 39 L. Ed. 2d 505 (1974). New York Civil
Liberties Union, Inc. v. Acito, 459 F. Supp. 75, 81-82 (S.D.N.Y. 1978)
("{The plaintiffs} contend that the existence of the statute, in its
present form, leaves forever open the possibility of enforcement against
them as well as other non-partisan, non-political groups . . . The
potential for such a situation, with its clear likelihood of causing
chilling effects upon plaintiffs, leads us to conclude . . . that the . .
. questions are ripe for declaratory action.") (quoting American Civil
Liberties Union, Inc. v. Jennings, 366 F. Supp. 1041, 1048 (D.D.C. 1973));
Walker v. Munro, 124 Wn.2d 402, 416, 879 P.2d 920 (1994) ("In the First
Amendment context, a `chilling effect' on First Amendment rights is a
recognized present harm, not a future speculative harm, which allows third
party standing when the law in question burdens constitutionally protected
conduct.").
The ACLU engages in the support and opposition of referenda and
initiatives, as attested to by the fact they publicly supported Initiative
119. ACLU Br. at 3 n.1. Thus, they themselves are presented with the
choice of either risking prosecution under the statute or preemptively
tempering their public advertisements concerning proposed initiatives.
This Hobson's choice clearly grants standing to prosecute a declaratory
action against the facial unconstitutionality of RCW 42.17.530(1)(a).
4 The trial court also awarded attorney fees and costs to the ACLU under 42
U.S.C. 1988 because the ACLU successfully prevailed on its claims that the
Constitution does not permit the PDC to issue administrative restraints on
political speech and that there must be a final determination on the merits
before a court may restrain any political speech. The State does not
appeal these determinations by the trial court.
5 The ACLU may prosecute its complaint after the trial court dismissed the
original, underlying suit. State v. Port of Peninsula, 89 Wn.2d 764, 767,
575 P.2d 713 (1978) (The court has "discretion to retain an intervenor's
suit as a separate action, even if the main action falls.").
6 Before ascending to the bench Chief Justice John Marshall publicly
opposed the acts and pledged, if elected to Congress, that he would
"indisputably oppose their revival" without regard to constitutionality.
Jean Edward Smith, John Marshall, Definer of a Nation 244 (1996).
7 The State attempts to bootstrap its compelling interest argument by
claiming the interest is more compelling alleging the speech here is
unprotected. As discussed earlier, RCW 42.17.530(1)(a) impacts protected
speech and the discussion concerning compelling interest only further
demonstrates this.
8 Justice Talmadge's concurrence describes this statement as "flat wrong."
Concurrence (Talmadge, J.) at 15. However, to support its claim the
concurrence relies upon cases and statutes that are immaterial to Professor
Fried's accurate analysis. Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46
L. Ed. 2d 659 (1976) dealt with campaign finance; Burson v. Freeman, 504
U.S. 191, 112 S. Ct. 1846, 119 L. Ed. 2d 5 (1992) dealt with polling place
electioneering. RCW 29.51.020(1)(a) likewise deals with electioneering.
What relevance any of these have to the point made by Professor Fried, and
the issue in this case, is unclear. Certainly they have nothing to do with
punishment of general, nonpersonal political statements the state decides
are "misstatements, deceptions, and defamations."
9 Additionally, the implication drawn by Justice Talmadge's concurrence at
page 17 that "{t}he Court impliedly approved" statutory prohibitions
against making false statements is thwarted by the Court's express
statement declining to evaluate the constitutionality of the Ohio's
antifraud provisions. McIntyre v. Ohio Elections Comm'n, 514 U.S. 334,
351, 115 S. Ct. 1511, 131 L. Ed. 2d 426 (1995).
10 Justice Talmadge's concurrence claims characterizing this statute as
"patronizing and paternalistic" is a "novel approach to constitutional
analysis." Concurrence (Talmadge, J.) at 25. However, we are not alone as
the United States Supreme Court has adopted this "novel approach" as well.
See Eu, 489 U.S. at 223 (When the State "directly hampers the ability of a
party to spread its message and hamstrings voters seeking to inform
themselves about the candidates and the campaign issues," it has adopted a
"highly paternalistic approach" by "limiting what people may hear . . . ."
This approach renders such a law constitutionally suspect.).
GUY, J. (concurring) The judiciary has the duty to be vigilant in
protecting citizens from laws that chill political speech. Calculated lies
are not protected political speech. The elected representatives of the
people have a right to pass laws which make malicious lying illegal in
political campaigns; we have no constitutional duty to strike down such
laws. The statute before us requires actual malice regarding a false
statement of material fact, and requires that such malice and materiality
be proved in a court of law by clear and convincing evidence. RCW
42.17.530(2). I have an abiding belief in the value of "uninhibited,
robust, and wide-open" debate on public issues. New York Times Co. v.
Sullivan, 376 U.S. 254, 270, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964).
Intentional, malicious lies do not foster debate; they foster deception and
manipulation of the voting public.
I agree with the majority and Justice Talmadge's concurrence that the
advertisement before us from the 119 Vote No! Committee does not violate
RCW 42.17.530(1)(a). I disagree with the majority and Justice Madsen's
concurrence that the statute on its face violates the First Amendment.
MADSEN, J. (concurring) -- I agree with the majority that RCW
42.17.530 is facially unconstitutional because it sweeps protected First
Amendment activity within its provisions by penalizing political speech,
even if knowingly false, regarding an initiative measure. I write
separately to emphasize that I am not convinced that the same is true where
a statement contains deliberate falsehoods about a candidate for public
office. In my view, there is merit to the contention that the Legislature
may constitutionally penalize sponsorship of political advertising of such
a nature by enacting a narrower statute than RCW 42.17.530.
In New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S. Ct.
710, 11 L. Ed.2d 686, 95 A.L.R. 2d 1412 (1964), the Court held that under the First and
Fourteenth Amendments a public official is prohibited from "recovering
damages for a defamatory falsehood relating to his official conduct unless
he proves that the statement was made with `actual malice' -- that is, with
knowledge that it was false or with reckless disregard of whether it was
false or not." The Court soon refined the "official conduct" rule to
include "anything which might touch on an official's fitness for office."
Garrison v. Louisiana, 379 U. S. 64, 77, 85 S. Ct. 209, 13 L. Ed. 2d 125
(1964), overruled on other grounds by Curtis Publ'g Co. v. Butts, 388 U.S.
130, 87 S. Ct. 1975, 18 L. Ed. 2d 1094 (1967). The New York Times rule,
the Court said, is "based on a recognition that the First Amendment
guarantee of a free press is inevitably in tension with state libel laws
designed to secure society's interest in the protection of individual
reputation." Monitor Patriot Co. v. Roy, 401 U.S. 265, 270, 91 S. Ct. 621,
28 L. Ed. 2d 35 (1971). This interest in reputation is what distinguishes
speech concerning an initiative measure, which the majority correctly holds
is protected even if knowingly false, and speech regarding individuals.
In Monitor Patriot, the Court held that the New York Times rule
applies in the case of statements criticizing a candidate for public
office. "{I}t is abundantly clear that . . . publications concerning
candidates must be accorded at least as much protection under the First and
Fourteenth Amendments as those concerning occupants of public office." Id.
at 271;1 see also Oscala Star-Banner Co. v. Damron, 401 U.S. 295, 91 S. Ct.
628, 28 L. Ed. 2d 57 (1971) (holding that plaintiff in capacity as
candidate for county tax assessor was public official for purposes of New
York Times rule in defamation action against newspaper which published
false story that he had been indicted for perjury in a civil rights suit);
Brown v. Herald Co., 698 F.2d 949 (8th Cir. 1983) (candidate running for
office of sheriff is public official subject to New York Times rule). The
Court reasoned: "{I}f it be conceded that the First Amendment was
`fashioned to assure the unfettered interchange of ideas for the bringing
about of political and social changes desired by the people,' Roth v.
United States, 354 U.S. 476, 484{, 77 S. Ct. 1304, 1308, 1 L. Ed. 2d 1498
(1957)}, then it can hardly be doubted that the constitutional guarantee
has its fullest and most urgent application precisely to the conduct of
campaigns for political office." Monitor Patriot, 401 U.S. at 271-72.
The Court's decisions in New York Times and Monitor Patriot, and other
cases, have primarily addressed the extent to which speech is protected.
The other side of the coin, of course, is that where the actual malice
standard is met, speech may subject the speaker to pay damages without
running afoul of the First Amendment. Thus, statements about candidates
for public office made with actual knowledge of falsity or with reckless
disregard of whether they are true or false are not protected under the First and Fourteenth Amendments. A state, in short, may allow recovery of
damages for defamation to public officials, including candidates for public
office, provided that the New York Times actual malice standard is
satisfied. Accordingly, although there is no case directly on point, it is
reasonable to contend that the Legislature could enact a law prohibiting a
person from sponsoring with actual malice political advertising containing
false statements of material fact about a candidate for public office.
We need not, however, decide that issue because where an initiative
measure is involved, as in this case, the First Amendment does not permit
governmental censorship of political speech. There must be no impediment
to free and open debate regarding such issues. For unlike the case where
the societal interest in individual reputations is at stake, there is no
competing interest sufficient to override our precious freedom to
vigorously debate the wisdom of enacting a measure, even if that debate
contains falsehoods as well as truths.2 The voters in this state are able
to make an informed choice based upon freely advanced competing ideas,
sorting the wheat from the chaff, and can compare what they hear and read
with the text of a proposed measure.
FOOTNOTES
1 The Court also recognized:
The principal activity of a candidate in our political system, his
"office," so to speak, consists in putting before the voters every
conceivable aspect of his public and private life that he thinks may lead
the electorate to gain a good impression of him. A candidate who, for
example, seeks to further his cause through the prominent display of his
wife and children can hardly argue that his qualities as a husband or
father remain of "purely private" concern. And the candidate who vaunts
his spotless record and sterling integrity cannot convincingly cry "Foul!"
when an opponent or an industrious reporter attempts to demonstrate the
contrary. Any test adequate to safeguard First Amendment guarantees in
this area must go far beyond the customary meaning of the phrase "official
conduct."
Monitor Patriot Co. v. Roy, 401 U.S. 265, 274, 91 S. Ct. 621, 28 L. Ed. 2d
35 (1971) (footnote omitted).
2 Cf. Citizens Against Rent Control/Coalition for Fair Hous. v. City of
Berkeley, 454 U.S. 290, 297-98, 102 S. Ct. 434, 70 L. Ed. 2d 492 (1981)
(drawing a distinction for First Amendment purposes between candidates'
election campaigns and ballot measure campaigns; First Amendment standard
for core political speech prohibits the states from limiting the dollar
amounts of contributions for and against ballot measures in order to
"equalize" the information presented on both sides, unlike the situation
where the governmental interest in avoiding danger of corrupt officeholders
is sufficient to justify limits on contributions to a candidate's
election).
TALMADGE, J. (concurring) -- Today the Washington State Supreme Court
becomes the first court in the history of the Republic to declare First
Amendment protection for calculated lies. In so doing, the majority
opinion flouts numerous United States Supreme Court pronouncements to the
contrary. The majority determines RCW 42.17.530, a statute providing
penalties for dissemination of false political advertising, is facially
violative of the First Amendment because the State has no compelling
interest in preventing lies in the course of an initiative or referendum
campaign, no matter how egregious the lies may be.
The sweep of the majority's rhetoric is so encompassing that no
statute designed to ensure statements of fact in political campaigns are
truthful would survive a First Amendment challenge. Moreover, the breadth
of the majority's rhetoric has untold impacts on existing law regarding
political campaigns for candidates and ballot measures.
The majority is also shockingly oblivious to the increasing nastiness
of modern American political campaigns. This trend is highlighted by a
"win at any cost" attitude involving vilification of opponents and their
ideas. This new type of campaign neither illuminates nor exemplifies the
best of our democratic tradition, and has caused too many of our fellow
citizens to turn away from participation in the political process.
While I believe the First Amendment properly presents extraordinarily
difficult hurdles for statutes addressing political speech and conduct, I
cannot agree RCW 42.17.530 violates the First Amendment. However, because
I believe the 119 Vote No! Committee (Committee) did not violate RCW
42.17.530(1)(a), I concur in the majority's disposition of the case.
ANALYSIS
In view of the majority's pioneering foray into uncharted First
Amendment territory, one might expect an extensive legal discussion
explaining what new and original insights led it to this understanding.
Instead, the majority opinion consists largely of a collage of quotes
extolling the virtues of free speech, propositions with which no one
disagrees, and then concludes summarily the challenged statute fails the
First Amendment test. Given the uniqueness of the majority's conclusion,
more rigorous constitutional analysis is certainly required.
A. Standard of Review
The issue at bar has reached us on cross-motions for summary judgment.
We decide appeals from summary judgments de novo. Because this case
involves a First Amendment challenge to a statute regulating the content of
speech, we presume the statute is unconstitutional, and subject the statute
to strict scrutiny. Collier v. City of Tacoma, 121 Wn.2d 737, 748-49, 854
P.2d 1046 (1993).
B. Constitutionality of RCW 42.17.530
The majority cites only a small portion of the challenged statute,
Majority op. at 7, and undertakes no analysis of the wording of the
statute. Thus, one must guess as to the constitutional infirmities the
majority claims exist. The majority tells us the State may not prohibit
"unpalatable" speech. Majority op. at 10. But the statute addresses only
lies, not vitriol. The majority tells us the State may not silence
criticism of the government. Id. But the statute addresses only
calculated falsehoods, not censure. The majority tells us the State may
not chill uninhibited political debate. Majority op. at 11. But the
statute addresses only malicious prevarication, not honest, robust,
political debate. The majority tells us factual blunders are best
corrected by the opponent. Majority op. at 12. But the statute addresses
deliberate falsehoods, not innocent errors of fact.1
The key to the majority's analysis of the statute is found in the
following two sentences: "The State asserts it may prohibit false
statements of fact contained in political advertisements. The claim
presupposes the State possesses an independent right to determine truth or
falsity in political debate." Majority op. at 9. The majority thus
presumes the people of Washington have no authority to require persons to
tell the truth. This presumption is, of course, wrong. Perjury has been a
part of Washington's criminal code since territorial days. See Ch. 9A.72
RCW. Prohibitions against lying and bearing false witness may be found in
cultures worldwide from time immemorial. See Richard H. Underwood, False
Witness: A Lawyer's History of the Law of Perjury, 10 Ariz. J. Int'l &
Comp. L. 215 (1993), for a comprehensive survey of prohibitions against
lying.
Although perjury itself concerns lying under oath or in official
proceedings, there is no reason the State may not prohibit lying in other
contexts pursuant to the exercise of its police power. That is precisely
what the State has done by enacting the challenged statute in this case.
The challenged statute is plainly a valid exercise of the police
power. Lawton v. Steele, 152 U.S. 133, 137 14 S. Ct. 499, 38 L. Ed. 385
(1894); State v. Crediford, 130 Wn.2d 747, 752, 927 P.2d 1129 (1996)
(quoting State v. Brayman, 110 Wn.2d 183, 193, 751 P.2d 294 (1988), which
in turn quoted State v. Conifer Enters., Inc., 82 Wn.2d 94, 96-97, 508 P.2d
149 (1973)). If the elected representatives of the people of Washington,
who are accountable to their constituents every two and four years, in
their considered judgment believe calculated lying does not belong in
electoral politics, it is not for us to question the wisdom of or necessity
for such legislation.
Turning to the First Amendment, the threshold question is whether the
statute affects speech over which the First Amendment affords protection.
Without examining the wording or effect of the statute, the majority simply
assumes protected speech is involved. Subsuming the answer in the question
falls a good way short of the penetrating rigor a legitimate constitutional
analysis requires. We start with the wording of the statute.
Before 1988, RCW 42.17.530 read:
A person shall not sponsor political advertising which
contains information that the person knows, or should reasonably
be expected to know, to be false. No political advertising may
falsely represent that a candidate is an incumbent for the office
sought. A person or candidate shall not make, either directly or
indirectly, a false claim stating or implying the support or
endorsement of any person or organization.
In Laws of 1988, ch. 199, sec. 2, the Legislature replaced that language
with the following:
(1) It is a violation of this chapter for a person to
sponsor with actual malice:
(a) Political advertising that contains a false statement
of material fact;
(b) Political advertising that falsely represents that a
candidate is the incumbent for the office sought when in fact the
candidate is not the incumbent;
(c) Political advertising that makes either directly or
indirectly, a false claim stating or implying the support or
endorsement of any person or organization when in fact the
candidate does not have such support or endorsement.
(2) Any violation of this section shall be proven by clear
and convincing evidence.
The new statute now requires actual malice before a violation may be found.
In Laws of 1988, ch. 199, sec. 1, now codified as RCW 42.17.505(1), the
Legislature defined actual malice to mean "to act with knowledge of falsity
or with reckless disregard as to truth or falsity." By requiring the
intermediate standard of proof, clear and convincing evidence, the new
statute made violations more difficult to prove. Thus, a person violates
the statute if and only if he or she sponsors political advertising that is
(1) a false statement of material fact (2) with actual malice, as defined,
and (3) is found to have done so by clear and convincing evidence. One
example of a violation of this statute might be a political flyer from a
candidate who declares herself to be the incumbent when in fact she is not.
She has acted with "knowledge of falsity."2 Another example could be one
candidate's accusing an opponent of having been convicted of desertion
during the Vietnam War. In a case such as this, the accuser may have no
actual knowledge one way or the other, but has violated the statute by
acting with "reckless disregard as to the truth or falsity" of the
accusation. These examples are what men and women of common understanding
would describe as deliberate lies. Do deliberate lies come under the
protective umbrella of the First Amendment? The majority opinion says
"yes." The Supreme Court of the United States has said "no" on numerous
occasions, as have all other courts addressing the same question.
The Supreme Court has unequivocally and repeatedly refused to extend
First Amendment protection to deliberate lies. The Court said in Garrison
v. Louisiana, 379 U.S. 64, 75, 85 S. Ct. 209, 13 L. Ed. 2d 125 (1964):
The use of calculated falsehood, however, would put a
different cast on the constitutional question. Although honest
utterance, even if inaccurate, may further the fruitful exercise
of the right of free speech, it does not follow that the lie,
knowingly and deliberately published about a public official,
should enjoy a like immunity. At the time the First Amendment
was adopted, as today, there were those unscrupulous enough and
skillful enough to use the deliberate or reckless falsehood as an
effective political tool to unseat the public servant or even
topple an administration. Cf. Riesman, Democracy and Defamation:
Fair Game and Fair Comment I, 42 Col. L. Rev. 1085, 1088-1111
(1942). That speech is used as a tool for political ends does
not automatically bring it under the protective mantle of the
Constitution. For the use of the known lie as a tool is at once
at odds with the premises of democratic government and with the
orderly manner in which economic, social, or political change is
to be effected. Calculated falsehood falls into that class of
utterances which "are no essential part of any exposition of
ideas, and are of such slight social value as a step to truth
that any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality. . . ."
Chaplinsky v. New Hampshire, 315 U. S. 568, 572{, 62 S. Ct. 766,
769, 86 L. Ed. 1031 (1942)}. Hence the knowingly false statement
and the false statement made with reckless disregard of the
truth, do not enjoy constitutional protection.
These were the words of Justice Brennan, certainly not one disposed to
limit First Amendment freedoms.
Ten years later, in Gertz v. Robert Welch, Inc., 418 U.S. 323, 340, 94
S. Ct. 2997, 41 L. Ed. 2d 789 (1974), the Court reiterated: "But there is
no constitutional value in false statements of fact. Neither the
intentional lie nor the careless error materially advances society's
interest in `uninhibited, robust, and wide-open' debate on public issues,"
citing New York Times, 376 U.S. at 270. And, in Brown v. Hartlage, 456
U.S. 45, 59, 102 S. Ct. 1523, 71 L. Ed. 2d 732 (1982), the Court said, "Of
course, demonstrable falsehoods are not protected by the First Amendment in
the same manner as truthful statements." Accord Herbert v. Lando, 441 U.S.
153, 171, 99 S. Ct. 1635, 60 L. Ed. 2d 115 (1979) ("Spreading false
information in and of itself carries no First Amendment credentials."),
cited with approval by Bill Johnson's Restaurants, Inc. v. National Labor
Relations Bd., 461 U.S. 731, 743, 103 S. Ct. 2161, 76 L. Ed. 2d 277 (1983)
("false statements are not immunized by the First Amendment right to
freedom of speech"); Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 52, 91 S.
Ct. 1811, 29 L. Ed. 2d 296 (1971) ("Calculated falsehood, of course, falls
outside `the fruitful exercise of the right of free speech,' " citing
Garrison, 379 U.S. at 75); Time, Inc. v. Hill, 385 U.S. 374, 389-90, 87 S.
Ct. 534, 17 L. Ed. 2d 456 (1967) ("But the constitutional guarantees can
tolerate sanctions against calculated falsehood without significant
impairment of their essential function. We held in New York Times that
calculated falsehood enjoyed no immunity in the case of alleged defamation
of a public official concerning his official conduct."); St. Amant v.
Thompson, 390 U.S. 727, 732, 88 S. Ct. 1323, 20 L. Ed. 2d 262 (1968)
("Neither lies nor false communications serve the ends of the First
Amendment."); Linn v. United Plant Guard Workers of Am., Local 114, 383
U.S. 53, 63, 86 S. Ct. 657, 15 L. Ed. 2d 582 (1966) ("{T}he most repulsive
speech enjoys immunity provided it falls short of a deliberate or reckless
untruth."); Vanasco v. Schwartz, 401 F. Supp. 87, 93 (S.D. N.Y. 1975)
("{W}e can agree with the Board's argument that calculated falsehoods are
of such slight social value that no matter what the context in which they
are made, they are not constitutionally protected."), aff'd, 423 U.S. 1041,
96 S. Ct. 763, 46 L. Ed. 2d 630 (1976). See also Riley v. National Fed'n
of the Blind of North Carolina, Inc., 487 U.S. 781, 803, 108 S. Ct. 2667,
101 L. Ed. 2d 669 (1988) (Scalia, J., concurring in part, concurring in
judgment) ("Where core First Amendment speech is at issue, the State can
assess liability for specific instances of deliberate deception."); Ocala
Star-Banner Co. v. Damron, 401 U.S. 295, 301, 91 S. Ct. 632, 28 L. Ed. 2d
57 (1971) (White, J., concurring) ("Misinformation has no merit in itself;
standing alone it is as antithetical to the purposes of the First Amendment
as the calculated lie.").
We have been no less vociferous in denouncing the calculated lie in
the campaign context:
{W}e do not believe that the First Amendment protects one who
utters a statement with knowledge of its falsity, even in the
context of a judicial campaign. Such speech is not beneficial to
the public and is generally harmful to the person against whom it
is directed. The only beneficiary of the comment is the utterer
thereof. On balance, such statements are not deserving of
constitutional protection.
In re Donohoe, 90 Wn.2d 173, 181, 580 P.2d 1093 (1978). We have not
overruled this case by amending the Code of Judicial Conduct, as the
majority asserts. Majority op. at 16-17. Nevertheless, the majority's
analysis calls into question the analysis of our own canons of judicial
conduct. In Donohoe, a candidate for a judicial office deliberately
altered campaign letters sent on behalf of her opponent in a fashion this
Court described as "reprehensible and a fraud upon the voting public."
Donohoe, 90 Wn.2d at 184.
Likewise, in In re Kaiser, 111 Wn.2d 275, 759 P.2d 392 (1988), a
judicial candidate suggested his opponent's support came from "drunk
driving defense attorneys" and this Court found such statements were false.
In Kaiser, we specifically noted that political candidates, including
judicial candidates, have rights of free speech, notwithstanding their
participation in the judicial campaign process. But we also said, "We
issued two reprimands in Donohoe, however, because we recognized that free
speech guaranties do not extend far enough to protect falsehood." Kaiser,
111 Wn.2d at 284.
Other state courts have agreed with our prior holdings: Fellows v.
National Enquirer, Inc., 211 Cal. Rptr. 809, 824 (Cal. App. 1985) ("{A}
publisher of what the Supreme Court has termed a `calculated falsehood' . .
. enjoys no constitutional protection." (Citations omitted)), rev'd on
other grounds, 42 Cal. 3d 234, 721 P.2d 97, 228 Cal. Rptr. 215, 57
A.L.R.4th 223 (1986); Long v. State, 622 So. 2d 536, 537 (Fla. App. ) ("The
use of calculated falsehoods under any circumstances, even in the criticism
of public officials, is not constitutionally protected."), review denied,
629 So. 2d 133 (Fla. 1993); Thibadeau v. Crane, 131 Ga. App. 591, 206
S.E.2d 609, 610 (1974) ("There is no privilege protecting the use of
calculated falsehood."); People v. Duryea, 76 Misc. 2d 948, 351 N.Y.S.2d
978, 988 (N.Y. Sup. Ct. 1974) ("Calculated falsehood is never protected by
the First Amendment."); People v. Bloss, 27 Mich. App. 687, 184 N.W.2d 299,
311 (1970) ("We see no difference constitutionally between the calculated
falsehood and the calculated appeal to prurient interest. Neither is a
communication of ideas entitled to constitutional protection."), rev'd on
other grounds, 388 Mich. 409, 201 N.W.2d 806 (1972); Theckston v. Triangle
Publications Inc., 100 N.J. Super. 452, 242 A.2d 629, 631 ("Speech
concerning public affairs is the essence of self-government so that, where
public officials are concerned, it is only the calculated falsehood which
will afford redress."), cert. denied, 393 U.S. 1001, 89 S. Ct. 486, 21 L.
Ed. 2d 466 (1968); State v. Powell, 114 N.M. 395, 839 P.2d 139, 142 (1992)
("{T}he knowingly false statement and the false statement made with
reckless disregard of the truth, do not enjoy constitutional protection.").
Despite the mountain of United States Supreme Court and state court
authority to the contrary, the majority decides the First Amendment
condones deliberate falsehoods in campaigns. As support for its position,
the majority cites to New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.
Ct. 710, 11 L. Ed. 2d 686, 95 A.L.R.2d 1412 (1964), on four separate
occasions. Yet nowhere does the majority opinion reveal the holding of New
York Times, which is "a public official cannot recover for defamation
unless he or she establishes the defendant made the defamatory statement
with actual malice, that is, knowledge of its falsity or with reckless
disregard for whether it was false or not." Richmond v. Thompson, 130
Wn.2d 368, 376, 922 P.2d 1343 (1996). The new RCW 42.17.530(1)(a), having
added actual malice as a required element of the violation and having
adopted from New York Times the exact language defining "actual malice,"
plainly passes muster under that case. Similarly, the new statute's
requirement of clear and convincing evidence mirrors the requirement for
the higher standard of proof set forth in Gertz v. Robert Welch, Inc., 418
U.S. 323, 342, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974). How, then, can a
statute on all fours with controlling United States Supreme Court authority
be unconstitutional in Washington? As long as New York Times remains the
supreme law of the land, we are not free to ignore it, or to interpret it
to our liking, short of articulating independent state grounds for doing so
under the Washington constitution. Nobody has made such an argument in
this case. The United States Supreme Court would not find RCW
42.17.530(1)(a) unconstitutional under its First Amendment jurisprudence.
Nor may we. See Wash. Const. art I, sec. 2 ("The Constitution of the
United States is the supreme law of the land.").
The Court's holding in New York Times and its repeated refusals to
grant First Amendment protection to lies are completely dispositive of the
issues in this case. The majority is undeterred by authority, however, and
finding no case extending First Amendment protection to deliberate lies in
political campaigns, asserts a novel proposition to support its conclusion:
the majority decides that everything the Supreme Court said in New York
Times, Garrison, and Gertz concerning deliberate lies is applicable only to
defamation cases, and not to ballot issues that, because they do not
involve individuals, are not susceptible to defamation actions. The
Supreme Court itself has never indicated such a dichotomy exists, nor has
any other court in any other jurisdiction.
The majority takes its cue from intervenor American Civil Liberties
Union (ACLU), which cited in its brief a law review article by former
Harvard Law School Professor Charles Fried. Fried writes: "In political
campaigns the grossest misstatements, deceptions, and defamations are
immune from legal sanction unless they violate private rights -- that is,
unless individuals are defamed." Charles Fried, The New First Amendment
Jurisprudence: A Threat to Liberty, 59 U. Chi. L. Rev. 225, 238 (1992).
Then-Professor Fried did not discuss the rationale for his assertion; nor
is it the central or even the peripheral subject of his law review article.
He did not discuss New York Times, or Gertz, or Garrison in the context of
his statement. Nor did he suggest calculated lying has a legitimate role
in American politics. Fried's bare assertion has the effect of a throwaway
line. No other court has adopted his proposition; indeed, I can find none
that has even discussed it. Although the article in which the statement
appears has been cited many times in the scholarly literature for other
reasons, the statement itself has gone largely unnoticed in the five years
since it was published, except by the ACLU. On such flimsy authority, the
majority suggests we ignore all the Supreme Court pronouncements to the
contrary and hold the First Amendment protects calculated falsehoods.
Professor Fried is flat wrong. Numerous laws affecting First
Amendment rights intended to protect the integrity of the electoral process
itself, and not just private dignitary rights, have been upheld. The
leading example is Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed.
2d 659 (1976). There, the Court upheld federal statutory limitations on
political contributions and requirements that candidates disclose the
sources of their campaign funding against First Amendment challenges.
Buckley had nothing to do with reputational interests, yet the Court upheld
restrictions on First Amendment activities.
Other examples of constitutional restrictions on First Amendment
rights that do not involve reputational interests abound. For example, in
Washington, it is a gross misdemeanor on the day of a general or special
election to "{s}uggest or persuade or attempt to suggest or persuade any
voter to vote for or against any candidate or ballot measure" within 300
hundred feet of the entrance to a polling place. RCW 29.51.020(1)(a), (5).
This prohibition implicates several First Amendment rights: the right of
association, the right to travel, and the right to engage in political
speech. Political advocacy may perhaps be the quintessential value the
First Amendment protects. Nevertheless, the United States Supreme Court
has upheld the constitutionality of such electioneering laws. Burson v.
Freeman, 504 U.S. 191, 112 S. Ct. 1846, 119 L. Ed. 2d 5 (1992) (upholding
Tennessee statute prohibiting the solicitation of votes and display of
campaign materials within 100 feet of a polling place).
In summary, there are numerous valid restrictions on the content of
speech that do not involve personal, reputational interests. Fried was
wrong, and the majority is wrong in basing its conclusion solely on Fried's
unanalyzed statement.
Thus, the majority holds that in political campaigns involving ballot
issues the deliberate lie must receive First Amendment protection. Given
the majority's analysis, the language cited above from Garrison would read:
For the use of the known lie as a tool is not at odds with the
premises of democratic government and with the orderly manner in
which economic, social, or political change is to be effected.
Calculated falsehood falls into that class of utterances which
"are an essential part of any exposition of ideas, and are of
such great social value as a step to truth that their benefits
support the social interest in order and morality. . . ."
Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S. Ct. 766,
769, 86 L. Ed. 1031. Hence the knowingly false statement and the
false statement made with reckless disregard of the truth . . .
enjoy constitutional protection.
I could not disagree more. I discern no benefit whatsoever to our
treasured democracy from use of the calculated lie in electoral politics,
and cannot conceive the First Amendment protects it.
Most recently, in McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 115
S. Ct. 1511, 131 L. Ed. 2d 426 (1995), the United States Supreme Court
struck down Ohio's statutory prohibition against distribution of anonymous
campaign literature in a ballot measure campaign as violative of the First
Amendment. However, the Court did not categorically hold that any statute
addressing deliberately false statements in a ballot measure campaign
violated the First Amendment per se. The Court recognized that Ohio's
statutory prohibition on anonymous leaflets was not the state's principal
weapon against campaign fraud. The Court noted the Ohio Election Code
included statutory provisions providing detailed and specific prohibitions
against making or disseminating false statements during political
campaigns. The Court impliedly approved such specific prohibitions,
describing them "as a deterrent to the making of false statements by
unscrupulous prevaricators."3
The chilling effect of the statute on free speech is infinitesimal, if
it exists at all. The scope of RCW 42.17.530(1)(a) is severely proscribed.
It does not reach hyperbole or rhetoric, polemic or beguiling commentary,
satire or mockery, zealotry or insanity, insincerity or low cunning, true
beliefs or mere mistakes.4 It does not concern itself with opinion or
political position. The communists, the fascists, the socialists, the New
Democrats, the Old Democrats, the moderate Republicans, the radical right
Republicans, the liberals, the Luddites, the conservatives, the Christian
Coalition, the Reform Party, the Socialist Workers Party, the Wobblies, the
Webeloes, the cranks, the crackpots, the naive, the foolish, the property
rights advocates, the environmentalists, the Tsarists, the monarchists, the
anarchists, the disgruntled, the Sandanistas, the survivalists, the Ku Klux
Klan, the America Firsters -- all have nothing to fear from the law.
The statute speaks to only one person: the calculating liar, who with
clear mind and steadfast, deliberate purpose, coldly composes and
diligently distributes knowing lies to effect a desired political result.
The statute chills only this devious liar, not free speech. In short, "The
actual malice test penalizes only the `calculated falsehood.' "
Tavoulareas v. Washington Post Co., 567 F. Supp. 651, 657 (D.D.C. 1983)
(citing Garrison, 379 U.S. at 73-75), aff'd in part, rev'd in part sub nom.
Tavoulareas v. Piro, 759 F.2d 90 (D.C. Cir. 1985). I agree with Justice
Brennan writing in Garrison that the First Amendment does not protect the
deliberate lie. Accordingly, I do not find RCW 42.17.530(1)(a) facially
unconstitutional.5
C. Compelling State Interest
Because I conclude calculated lies are not protected speech under the
First Amendment, it is not necessary to address the second question, which
is, does the state have a compelling interest in prohibiting calculated
lies in political campaigns. Nevertheless, I address it because the
majority implies the State does not have a compelling interest in
preserving the sanctity of the electoral process.
We require a compelling governmental interest for regulation of
protected speech in a public forum, Bering v. Share, 106 Wn.2d 212, 236,
721 P.2d 918 (1986), and political speech is scrupulously protected.
Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976); Young
Americans for Freedom, Inc. v. Gorton, 83 Wn.2d 728, 522 P.2d 189 (1974).
Do the people of Washington have a compelling interest in penalizing
deliberate lies in political campaigns? The answer is obvious. The United
States Supreme Court said in Burson v. Freeman, 504 U.S. 191, 199-200, 112
S. Ct. 1846, 119 L. Ed. 2d 5 (1992):
Accordingly, this Court has concluded that a State has a
compelling interest in protecting voters from confusion and undue
influence. See Eu, 489 U.S., at 228-229{, 109 S. Ct., at 1023}.
The Court also has recognized that a State "indisputably has
a compelling interest in preserving the integrity of its election
process." Id., at 231{, 109 S. Ct., at 1024}. The Court thus
has "upheld generally applicable and evenhanded restrictions that
protect the integrity and reliability of the electoral process
itself." Anderson v. Celebrezze, 460 U.S. 780, 788, n. 9{, 103
S. Ct. 1564, 1570, n.9, 75 L. Ed. 2d 547} (1983) (collecting
cases). In other words, it has recognized that a State has a
compelling interest in ensuring that an individual's right to
vote is not undermined by fraud in the election process.
The State has a compelling interest in ensuring the integrity of the
electoral process, for ballot measures as well as for election of
candidates. That compelling interest includes punishing calculated deceit
and knowing lies.
A distressing feature of the majority's analysis is its fundamental
lack of any connection with the real world of political campaigns. Its
entire answer to any concerns about an electoral process flowing from
deliberate lies is that more speech will cure such falsehoods. I wish this
were true, and, in the best of all possible worlds, it could be. But, in
modern American politics, it isn't reality. It is indeed all too common
for candidates, political committees and individuals in political campaigns
to make last minute charges, usually distributed the weekend before
election day or in a fashion calculated to forestall a reply through
whatever means at their disposal. There is simply no time to use any of
the traditional means of political communication -- leaflets, direct mail,
newspaper, radio or television advertising -- to combat late hour,
outrageously false statements. Further speech, in the classic formulation,
will not cure such a situation. Texas v. Johnson, 491 U.S. 397, 419, 109
S. Ct. 2533, 105 L. Ed. 2d 342 (1989) (more speech, not enforced silence,
cures false speech). As the United States Supreme Court in Gertz v. Robert
Welch, Inc., 418 U.S. 323, 345 n.9, 94 S. Ct. 2997, 41 L. Ed. 2d 789
(1974), stated: "{A}n opportunity for rebuttal seldom suffices to undo
harmful defamatory falsehood. Indeed the law of defamation is rooted in
our experience that the truth rarely catches up with the lie."
Ironically, in the case of defamation in a campaign involving
candidates, the remedies for such conduct may actually be greater than
those available to address outright lies in a ballot measure campaign. A
defamed candidate has a cause of action in court. That candidate may also
suggest to the legislative body that the offending candidate should not be
seated. See Wash. Const. art. II, sec. 8 ("Each house shall be the judge
of the election, returns and qualifications of its own members. . . .").
That candidate could even challenge the offender in the next election. By
contrast, the ballot measure enacted on the basis of a campaign of lies may
be amended only by a two-thirds vote of the Legislature for the period of
two years after its enactment. Wash. Const. art. II, sec. 41 (amend. 26).
Few legislators would choose to risk proposing the repeal of a popularly
enacted measure, let alone two-thirds of all legislators necessary for such
repeal, to express antagonism to a campaign flawed by deliberate lies.
American political campaigns in general and campaigns in the State of
Washington have become all too often campaigns of vilification and
mudslinging, rather than campaigns of communication. While this has been
true throughout the course of American history,6 the sophistication of
recent political campaigns coupled with the ability of the media to reach
so many so quickly have only enhanced the power of last minute campaign
smears. Moreover, money talks in elections. If the victim is without
significant campaign resources, the "Big Lie" technique can, unfortunately
prevail over the truth. All too many of our fellow citizens, turned off by
these kinds of political maneuvers, have turned away from the political
system, expressing indifference to the extreme tactics taken by partisans
of candidates or issues.7
Because of the foregoing realities of modern electoral politics, the
State Legislature was justified in declaring a compelling interest in
ensuring that at least a modicum of propriety be observed in political
campaigns, that modicum being honesty. In particular, the State has a
compelling interest to ensure no deliberately false statements of fact are
disseminated in the course of a campaign involving candidates or ballot
measures. The majority would destroy any statutory effort to prohibit
deliberate falsehoods in campaigns or, for that matter, disclosure of
information to the public regarding adherence to campaign ethics standards.
With this, the majority sends out the wrong message to a public troubled by
rampant problems in the campaign process while it condones lies in ballot
measure campaigns as constitutionally protected, leaving our society
powerless to take the most minimal steps to stop them. Unlike the
majority, I am unwilling to find, as a matter of First Amendment
principles, that any and all lies, no matter how egregious, are
constitutionally protected in ballot measure campaigns.
The majority considers invocation of society's interest in campaign
integrity "patronizing and paternalistic." This is a novel approach to
constitutional analysis. We have no authority to strike down legislation
because we consider it to be patronizing and paternalistic. No
constitutional standard of review with which I am familiar encompasses
those terms. I consider it remarkably patronizing to claim the people of
Washington have no compelling interest in preventing political campaigns
from being corrupted by deliberate liars.
Were we to adopt the sweeping scope of the First Amendment in
political campaigns advocated by the majority here (the State has no
compelling interest in ensuring the sanctity of the electoral process
because such concern is patronizing and paternalistic), any statute
regulating the campaign process would fail. It is difficult to discern how
public disclosure of contributions or expenditures would stand a First
Amendment challenge in light of the majority's notion that the State has no
compelling interest in the integrity of the campaign process. Yet we have
held it does. Fritz v. Gorton, 83 Wn.2d 275, 301, 517 P.2d 911 (1974) ("it
is within the power of the people to prescribe informational standards or
disclosure qualifications relative to public office").
Moreover, the specific provisions of RCW 42.17.530 not at issue in
this case would similarly be subject to attack. RCW 42.17.530(1)(b)
prohibits political advertising that falsely represents a candidate is the
incumbent for an office sought when in fact the candidate is not the
incumbent. Similarly, RCW 42.17.530(1)(c) prohibits advertising that
directly or indirectly suggests a person has been endorsed or supported by
an organization or person when the candidate has no such support or
endorsement.8 To use the majority's analysis, deliberately false
statements concerning incumbency or concerning endorsements do not involve
defamatory conduct with respect to another candidate, but rather impugn the
integrity of the process. The State does, in fact, have a compelling
interest in ensuring political campaigns are conducted within some bounds
of propriety and within the bounds of the public's need for appropriate
information about the issues and sponsors of such issues.9
In summary, the First Amendment does not protect calculated lies.
Moreover, the people of Washington have a compelling interest in
preventing such lies in electoral campaigns. I would uphold the facial
constitutionality of RCW 42.17.530(1)(a).
D. Application of RCW 42.17.530
Having found the statute constitutional, I next address whether it was
violated. The trial court correctly determined the 119 Vote No! Committee
did not violate RCW 42.17.530 because the Committee engaged in traditional
political campaign hyperbole in the campaign against Initiative 119. The
Committee distributed a leaflet with statements of opinion regarding the
contents of the proposed law; those opinions did not constitute facts
within the meaning of the statute.
The statute does not purport to define "a material fact" in the
context of a political campaign or determine whether the campaign involves
a candidate or a ballot measure. An opinion is not subject to the
statute's reach, as the deputy attorney general for the Public Disclosure
Commission (PDC) conceded in oral argument. Prior decisions of Washington
courts have indicated whether a statement or communication is a fact or
opinion is a question of law for the court; the court should consider the
entire communication, not particular portions of it, the degree to which
the truth or falsity of a statement can be objectively determined without
resort to speculation, and whether ordinary persons hearing or reading the
statement or communication receive it as an expression of opinion rather
than a statement of fact in analyzing the existence of a fact or opinion.
Benjamin v. Cowles Publ'g Co., 37 Wn. App. 916, 922-23, 684 P.2d 739,
review denied, 102 Wn.2d 1018 (1984); Camer v. Seattle Post-Intelligencer,
45 Wn. App. 29, 39-40, 723 P.2d 1195 (1986), review denied, 107 Wn.2d 1020,
cert. denied, 482 U.S. 916, 107 S. Ct. 3189, 96 L. Ed. 2d 677 (1987); Hoppe
v. Hearst Corp., 53 Wn. App. 668, 671-73, 770 P.2d 203 (1989).
In construing a similar statute, Oregon courts have consistently held
that a statement that can in any way be inferred to be either factually
correct or a mere opinion is not prohibited by Oregon's statute, even
though it could also be interpreted as a false factual statement. See,
e.g., Committee of One Thousand to Re-Elect State Senator Walt Brown v.
Eivers, 296 Or. 195, 674 P.2d 1159, 1164 (1983). The Oregon standard is a
very difficult one to establish, but still provides that factually false
statements may be actionable.
In light of the First Amendment issues present in the political
campaign context -- whether a campaign by candidates or a campaign by
ballot measure -- and the benefits of robust political discussion, I would
adopt the standard for opinion and fact articulated in Benjamin and Hoppe
with the additional refinement of the Oregon courts.10
Turning to the facts in this case, the trial court held as a matter of
law the statements made by the Committee were not statements of material
fact, but rather involved the effect or meaning of the proposed law and,
therefore, were more in the nature of opinions rather than factual
statements:
As commonly understood, facts do not include comments regarding
the contents of laws of {sic} their interpretations. Statements
about the effect or meaning of law are other-than-fact, are a
matter of law and are determined by judicial opinion.
Clerk's Papers at 274. I agree with the trial court.
The leaflet here stated Initiative 119 would permit doctors to end
patients' lives "without safeguards," arguing the Initiative did not
specify special qualifications for physicians under the Initiative, rules
against coercion of patients, reporting requirements for when the authority
under the Initiative was exercised, notification requirements for family
members, or special protections for vulnerable individuals. These concerns
relate particularly to the operation or effect of the law. As the PDC
indicates in its brief, these statements are often far beyond the actual
text of the Initiative. PDC Br. at 9-12.
However, these statements are debatable assertions of opinion
regarding the impact of the Initiative from the perspective of the
Initiative's opponents, who believed the Initiative went too far in
allowing physician-assisted suicide and did too little to protect
individuals subject to its authority.
Political campaigns are communications exercises and often involve
heated debate rife with hyperbole that pushes the truth to its edge. The
Committee's statements in its leaflet were statements of opinion about the
effect of the proposed law. They were sufficiently debatable to fall
within the wide latitude this Court has traditionally given to political
speech.11
In 1938, the Wisconsin Supreme Court considered a state statute
prohibiting the publishing of false representations pertaining to a
candidate or referendum.12 I wholeheartedly agree with the following
statement by that court:
Nothing is more important in a democracy than the accurate
recording of the untrammeled will of the electorate. Gravest
danger to the state is present where this will does not find
proper expression due to the fact that electors are corrupted or
are misled. . . . It is . . . possible and feasible to require
of candidates that statements of fact known to be false and so
substantially bearing upon the fitness of other candidates as to
have a tendency to influence votes shall not be made the basis of
appeals for votes.
State ex rel. Hampel v. Mitten, 227 Wis. 598, 607, 278 N.W. 431 (1938). To
achieve the "accurate recording of the untrammeled will of the electorate,"
the First Amendment can indeed "tolerate sanctions against calculated
falsehood." Time, Inc., 385 U.S. at 389-90.
CONCLUSION
The trial court's judgment that RCW 42.17.530 is not facially
unconstitutional and that the Committee did not violate the statute should
be affirmed.
FOOTNOTES
1 Brown v. Hartlage, 456 U.S. 45, 102 S. Ct. 1523, 71 L. Ed. 2d 732
(1982), struck down a Kentucky statute purporting to punish innocent but
mistaken assertions of facts.
2 See Treasurer of the Comm. to Elect Gerald D. Lostracco v. Fox, 150
Mich. App. 617, 389 N.W.2d 446 (1986) (affirming injunction against
candidate for judgeship who falsely claimed in campaign literature he was
the incumbent, holding "{k}nowing misrepresentations are not
constitutionally protected free speech.").
3 McIntyre, 115 S. Ct. at 1521. For example, Ohio Revised Code
Annotated 3599.09.2(B) (1988) provides:
No person, during the course of any campaign in advocacy of or in the
opposition to the adoption of any ballot proposition or issue, by means of
campaign material, including sample ballots, an advertisement on radio or
television or in a newspaper or periodical, a public speech, a press
release, or otherwise, shall knowingly and with intent to affect the
outcome of such campaign do any of the following:
(1) Falsely identify the source of a statement, issue statements
under the name of another person without authorization, or falsely state
the endorsement of or opposition to a ballot proposition or issue by a
person or publication;
(2) Post, publish, circulate, distribute, or otherwise disseminate, a
false statement, either knowing the same to be false or acting with
reckless disregard of whether it was false or not, that is designed to
promote the adoption or defeat of any ballot proposition or issue.
See Pestrak v. Ohio Elections Comm'n, 926 F.2d 573 (6th Cir. 1991) (court
upheld Ohio Rev. Code 3599.091(B)(1) which proscribes false statements in
campaigns involving candidates if false statement was made knowingly or
with reckless disregard as to its falsity; statute was not unconstitutional
on its face).
4 Then-Professor Bogen aptly and eloquently illuminated the
constitutional difference between a mistake of fact and a deliberate lie:
{U}nless innocent falsehoods are protected, valid criticisms of
governmental conduct may be stifled. The calculated falsehood, however,
needs no such protection. As long as the populace is aware that it is the
calculation and not the falsity that exposes one to punishment, the
innocent speaker will not be deterred from saying what he believes to be
true. The Court need focus only on the knowledge of the speaker and not on
the truth of his statement, or the quality of his ideas. Again the Court
is concerned with the elimination of an evil by means which are not
directed to the content of the words.
David S. Bogen, The Supreme Court's Interpretation of the Guarantee of
Freedom of Speech, 35 Md. L. Rev. 555, 605-06 (1976) (footnote omitted).
5 The majority's disapproval of RCW 42.17.530(1)(a) goes further than
its analysis warrants. The majority's analysis recognizes two different
situations -- the first, where candidates are involved, implicating
defamation concerns, and the second, where only ballot issues are involved,
and defamation is not an issue. It is not clear at all from the majority's
analysis that the statute should be unconstitutional under the first
circumstance. Indeed, insofar as the statute tracks the New York Times
test, it plainly cannot be unconstitutional. At most, then, the majority's
reasoning supports a holding of unconstitutionality only when ballot issues
are involved, yet the majority strikes down the statute in its entirety.
6 Madison referred to "the vicious arts, by which elections are too
often carried." The Federalist No. 10, at 63 (James Madison) (Jacob E.
Cooke ed., 1961).
7 In a 1988 campaign for the State House of Representatives, for
example, the successful candidate sent out a mailing over the last weekend
of the campaign against his opponent, a former Superintendent of Public
Instruction, implying that his opponent had "something to hide" in his
refusal to remove licenses of teachers investigated for illicit relations
with students.
8 These statutory prohibitions were the result of a 1984 campaign in
Snohomish County when a candidate for the Legislature falsely distributed
political advertising implying that the Everett Herald had endorsed him for
office when in fact the Herald had endorsed his opponent. 1985 House
Journal, Reg. Sess. at 78-80.
9 My analysis of the facial constitutionality of RCW 42.17.530 does
not mean that an appropriate challenge to its constitutionality as applied,
in light of the First Amendment protection to political speech, may not be
successful. An as-applied challenge is a very valuable deterrent to
excessive activities in campaigns by the Public Disclosure Commission or
the use of allegations of violation of RCW 42.17.530 as a campaign tactic.
10 As the Court of Appeals noted in Hoppe, an expression of opinion can
be defamatory if defamatory facts are the opinion's basis. Hoppe, 53 Wn.
App. at 671. For example, a person could not avoid the reach of RCW
42.17.530 by asserting "I believe all proponents of Initiative X are
criminals." See Milkovich v. Lorain Journal Co., 497 U.S. 1, 19, 110 S.
Ct. 2695, 111 L. Ed. 2d 1 (1990) ("Simply couching a statement -- `Jones is
a liar' -- in terms of opinion -- `In my opinion Jones is a liar' -- does
not dispel the factual implications contained in the statement").
11 Notwithstanding the wide latitude given to political speech in the
campaign context, I do confess some concern at the timing of the
distribution of the leaflet at issue in this case. One million copies of
the leaflet were distributed by the Committee over the weekend before the
election. In the real world of political campaigns, there was no
possibility whatsoever that the opponents of the Committee could prepare a
responsive leaflet, prepare a direct mail response, or purchase newspaper,
radio, or TV time sufficient to respond to any statements contained in the
leaflet, even if they were outright falsehoods as contemplated by RCW
42.17.530.
12 Wisconsin's current version of the statute is little changed from
1938 and reads: "No person may knowingly make or publish, or cause to be
made or published, a false representation pertaining to a candidate or
referendum which is intended or tends to affect voting at an election."
Wis. Stat. Ann. 12.05 (West 1996).