Court: State can’t block political lies

OLYMPIA – In a ruling that one justice called “an invitation to lie with impunity,” a deeply divided Washington State Supreme Court on Thursday threw out a $1,000 state fine against a Western Washington politician who mischaracterized her opponent’s record.

Political falsehoods are less of a threat to democracy than the prospect of “allowing an unelected government censor … to act as an arbiter of truth,” Justice Jim Johnson wrote for the majority.

The candidate who complained about his opponent’s ad called the ruling disappointing and dangerous. He predicted that “dirty campaigns will thrive.

“There’s no standards now,” said state Sen. Tim Sheldon, D-Potlatch. “You can say anything about anybody, and you’re going to get what you expect: the worst.”

The so-called government censor in this case was the Public Disclosure Commission, a voter-created state agency that acts as a campaign-finance watchdog.

In 2002, a local Green Party candidate named Marilou Rickert challenged Sheldon, a conservative Democrat in rural Mason County. Rickert mailed out a flier contrasting herself with Sheldon.

In it, she stated that Sheldon had “voted to close a facility for the developmentally challenged” in his district. In fact, Sheldon had voted against the state budget, largely because it authorized closing the camp. (Rickert later said she meant that Sheldon didn’t argue hard enough to keep the camp open.)

Sheldon complained to the PDC, which found that Rickert had broken a state law banning “political advertising that contains a false statement of material fact about a candidate.” State lawmakers passed the law in 1999, a year after the state Supreme Court threw out a similar ban on false statements about ballot measures.

Months after Rickert lost the election to Sheldon, the Public Disclosure Commission fined her $1,000. She appealed in court.

In a 5-4 ruling, the high court said Thursday that although “Ms. Rickert made knowingly false or reckless statements about Senator Sheldon,” the best fix is not for a government agency to ban such statements but for Sheldon to inform voters of the truth.

“… In other words, the best remedy for false or unpleasant speech is more speech, not less speech,” Johnson wrote. If Sheldon was harmed by the false statement – which Johnson said he doubts, seeing as how Sheldon won the election by a 79 percent landslide – he could sue for defamation.

In an unusually blunt dissent, Justice Barbara Madsen said that “the use of calculated falsehood is not constitutionally protected.”

As a result of the court’s ruling Thursday, she said, political campaigns are in danger of morphing into “contests of the best stratagems of lies and deceit, to the end that honest discourse and honest candidates are lost in the maelstrom.

“The majority does no service to the people of Washington when it turns the First Amendment into a shield for the ‘unscrupulous … and skillful’ liar to use knowingly false statements as an ‘effective political tool’ in election campaigns,” wrote Madsen, quoting from a 1964 case.

“It is little wonder that so many view political campaigns with distrust and cynicism.”

Sheldon echoed those sentiments.

“Opinions are one thing, but just to lie?” he said. “And the lies will come at the end of the campaign, when there’s no chance to rebut. … In a very close race like the governor’s race, for example, a very flamboyant lie could swing a campaign very easily.”

The American Civil Liberties Union, which represented Rickert, said that it’s essential for candidates to be free to strongly criticize opponents or the government without fear of getting slapped with a fine.

“The court recognized that government itself should not be in the business of vetting the truth and falsity of their political speech,” Washington ACLU Executive Director Kathleen Taylor said.

The Institute for Justice, a legal group that filed a friend-of-the-court brief supporting Rickert, said the ruling is an important repudiation of “government truth police.”

For government to tell citizens what is true and false in politics “is patronizing, paternalistic and incompatible with the principles of a free society,” said the group’s executive director, Bill Maurer.