“An invitation to lie with impunity”

Rickert v. Pub. Disclosure Comm’n, -- P.3d --, 2007 WL 2891498 (Wash. Oct. 4, 2007)

The state statute at issue banned “political advertising or an electioneering communication that contains a false statement of material fact [made with with knowledge of falsity or with reckless disregard as to truth or falsity] about a candidate for public office,” excluding “statements made by a candidate or the candidate's agent about the candidate himself or herself.” It was applied to a candidate who falsely stated that her opponent “voted to close a facility for the developmentally challenged in his district.”

The Washington Supreme Court struck down the statute on the theory that, absent defamation, falsity in political speech simply could not be punished (or even, it appears, evaluated) by the state: “The notion that the government, rather than the people, may be the final arbiter of truth in political debate is fundamentally at odds with the First Amendment” (emphasis added).

The court found that “protecting candidates” is not a compelling government interest, because the government has no right to determine political truth and no ability to do so correctly and consistently; and in any event the law was not narrowly tailored, because it covered nondefamatory malicious falsehoods as well as defamatory ones. Absent reputational harm, the government has no interest in protecting political candidates from falsehoods about them (though the court conceded that nondefamatory, false, malicious speech about private individuals could be punished).

What about protecting voters from fraud? The court further concluded that protecting the integrity of elections was not a compelling interest and that the law was not narrowly tailored. This part of the opinion, even more than the previous one, is evidence that “compelling interest” does no work in the analysis. Of course protecting electoral integrity is a compelling interest. (The court dodges by saying that the legislature didn’t refer to this interest, and that there may be a compelling interest in preventing “direct harm” to elections, e.g. by protecting the poll area or limiting the number of candidates on a ballot to those with some support. I’m not sure how that differs in directness from lies about viable candidates. If the government can’t determine truth, how does it know that the poll area needs protection or which candidates are viable?) But because there’s no government interest in determining truth, the law doesn’t advance the interest in protecting the electoral process.

Regardless, assuming there were a compelling interest, the court held that the law was not narrowly tailored. It was underinclusive in exempting all statements made by a candidate or her supporters about herself. So self-promotional lies were allowed. But there’s no reason to think candidates are less likely to lie about themselves than others, or that self-promotional lies are less harmful to the electoral process. (Hmm, I can think of a few reasons; why is it that politicians use negative campaigning again?)

The dissent argued that the majority “advances the efforts of those who would turn political campaigns into contests of the best stratagems of lies and deceit, to the end that honest discourse and honest candidates are lost in the maelstrom. … It is little wonder that so many view political campaigns with distrust and cynicism.” In the dissent’s view, there is no blanket rule against regulating false political speech, since calculated falsehood serves no First Amendment value and isn’t constitutionally protected. The “known lie” is, instead, antithetical to the premises of democratic government. Falsity and actual malice proved by clear and convincing evidence, the dissent argued, are sufficient to allow speech to be banned, without the extra requirement of defamatory meaning. Nondefamatory false, malicious speech harms the democratic process, disillusioning voters and deterring qualified candidates from running.

My interest in this holding comes from its implications for commercial speech regulation. The greater the gap in the substantive standards applied to commercial and political speech, the more important – and difficult – it becomes to police the boundary between them.

Commentary from Frank Pasquale and Eugene Volokh. Also relevant: Ellen Goodman’s discussion of false statements that may not do immediate harm, but may damage the overall system of discourse by making it unreliable, and the First Amendment justifications for regulating speech on that epistemic ground.