State supreme court’s written opinion allows controversial statement about sex ed to stay in superintendent candidate’s voter guide

A voters’ guide statement by the opponent of Superintendent of Public Instruction Chris Reykdal about his support for comprehensive sexual health education can stay, the state Supreme Court wrote in an opinion released Thursday.

The court, which voted 6-3 against Reykdal, ruled that challenger Maia Espinoza’s statement that Reykdal championed a policy that teaches “sexual positions to 4th graders” was not defamatory.

The opinion comes two months after the court released its initial summary ruling to candidates, saying Reykdal would not prevail in a defamation case.

Reykdal sued Espinoza in June over the statement. The Thurston County Superior Court ruled in favor of Reykdal, saying the statement was false and ordering the Secretary of State’s office to remove it from voter guides ahead of the primary. Espinoza then appealed to the state Supreme Court.

Chief Justice Debra Stephens, from Spokane, wrote in the majority opinion that Espinoza’s statement is not demonstrably false, and Reykdal would likely not prevail in a defamation case.

Washington state law allows for a candidate to sue another candidate over false statements in the voter guide, but in order for the statement to be removed, it must be proven to be defamatory.

The line in question refers to supplemental reading recommended in a handout from one of a list of curricula reviewed by the Office of the Superintendent of Public Instruction to be acceptable under the new comprehensive sex education bill that passed last session.

Reykdal has supported the bill, which calls for age-appropriate sexual health education to be taught multiple times during a child’s education.

Reykdal argued the material Espinoza referred to is a third-party source that parents can use in addition to what is being taught in school.

The majority found no evidence that Reykdal met his “threshold burden” of proving Espinoza’s statement false.

While Reykdal does not personally intend to teach sexual positions to fourth-graders, Stephens wrote, Espinoza’s statement critiqued his policy and its results, not his personal teaching.

While the handout is not part of the curriculum, she continues, it does not “break the logical chain of Espinoza’s statement.”

“It is unlikely but truthful that the policy could result in unintentionally exposing fourth-graders to depictions of, and thus ‘teaching’ them, different sexual positions,” Stephens wrote.

In a dissent, Justice Steven Gonzalez argued the supplemental handout is not part of any teaching curriculum. It is included in a set of materials that is listed with nine other curricula on the Office of Superintendent of Public Instruction’s site, he wrote.

Gonzalez said Espinoza’s statement is not a reasonable or plausible interpretation of the facts.

“The trail of bread crumbs is just too faint,” Gonzalez wrote.

The majority also found Reykdal did not have a substantial likelihood of prevailing in a defamation action, as Espinoza did not show “actual malice” – the standard set in the 1964 U.S. Supreme Court case New York Times Co. v. Sullivan that requires a “reckless disregard” for the truth in a defamatory case.

The standard of proof for defamation is higher in cases involving a public official.

Stephens wrote that Espinoza’s statement is “inflammatory” but not enough to defame Reykdal under the standard.

“There is nothing in the record to suggest that Espinoza made her statement knowing it was false or with a ‘reckless disregard’ of its veracity,” Stephens wrote.

Gonzalez wrote he disagreed with the idea that Reykdal did not meet a statutory burden, arguing the allegations were so improbable that they established actual malice.

Because the voters’ guide is a limited public forum, he continues, the government can establish a reasonable restriction, such as ensuring candidates do not make any statements that are false or misleading.

In an interview after the summary ruling in August, Espinoza said a weight was lifted off her campaign.

“Certainly we did not intend ever to lie,” she said. “We do intend to expose the truth, as uncomfortable as the subject is.”

Reykdal has long argued the taxpayer-funded voters’ guide should not be a place for candidates to say whatever they want. He said in August that he was worried about the implications of this decision.

“Sadly, the court majority just opened the door to much more of this in the future,” Reykdal said in a statement Thursday.

The voters’ guide has been in homes for at least two weeks.

“Whether Espinoza’s critique is fair – and whether Reykdal’s policy is sound – is for the voters to decide,” Stephens wrote.

Editor’s note: This article has been updated to correct the spelling of Justice Steven Gonzalez’s first name.