135 Wash. 2d 618 | Wash. | 1998
Lead Opinion
The Public Disclosure Commission (PDC) alleges the 119 Vote No! Committee violated RCW 42.17.530(l)(a) by publishing false political advertising. We must decide two issues: does RCW 42.17.530(l)(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(l)(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(l)(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.
RCW 42.17.530(l)(a) prohibits any person from sponsoring, with actual malice, a political advertisement contain
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(l)(a) by declaratory judgment.
Notwithstanding dismissal of the principal action against
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(l)(a) provides: “It is a violation of this chapter for a person to sponsor with actual malice . . . [political 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 cam
A. RCW 42.17.530(l)(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, 522 U.S. 866 (1997). Free speech is revered as the “Constitution’s most 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 pre
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’n of the Blind of N.C., 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)).
[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).
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.
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 (1798). 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.
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 state
B. RCW 42.17.530(l)(a) does not serve a compelling state interest
Because RCW 42.17.530(l)(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: “[Tjhere 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.
However the State’s rebanee on the law of defamation is
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:
However RCW 42.17.530(l)(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 Discipline of 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
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 650. 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(l)(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 cam
We therefore conclude RCW 42.17.530(l)(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(l)(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).
Dolliver and Smith, JJ., concur.
The leaflet stated in pertinent part:
IT WOULD LET DOCTORS END PATIENTS’ LIVES WITHOUT BENEFIT OF SAFEGUARDS . . .
• No special qualifications—
your eye doctor could kill you.
• No rules against coercion—
Nothing to prevent “selling” the idea to the aged, the poor, the homeless.
• No reporting requirements—
No records kept.
• No notification requirements—
Nobody need tell family members beforehand.
• 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.
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.
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.l. 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(l)(a).
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 Con
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.”).
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).
The State attempts to bootstrap its compelling interest argument by claiming the interest is more compelling alleging the speech here is unprotected. As
Justice Talmadge’s concurrence describes this statement as “flat wrong.” Concurrence (Talmadge, J.) at 646. 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.”
Additionally, the implication drawn by Justice Talmadge’s concurrence at page 648 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).
Justice Talmadge’s concurrence claims characterizing this statute as “patronizing and paternalistic” is a “novel approach to constitutional analysis.” Concurrence (Talmadge, J.) at 653. 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 CWhen 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.).
Concurrence Opinion
(concurring) — The judiciary has the duty to be
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(l)(a). I disagree with the majority and Justice Madsen’s concurrence that the statute on its face violates the First Amendment.
Durham, C.J., concurs with Guy, J.
Concurrence Opinion
(concurring) — [5] 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 dam
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;
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
Alexander, J., concurs with Madsen, J.
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).
Cf. Citizens Against Rent Controll 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).
Concurrence Opinion
(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 increas
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(l)(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
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 and falsity in political debate.” Majority op. at 624-25. 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 peijury 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
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, chapter 199, section 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*640 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, chapter 199, section 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.”
The Supreme Court has unequivocally and repeatedly
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 he 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
We have been no less vociferous in denouncing the calculated he 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 Discipline of 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 631. 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 Discipline of Kaiser, 111 Wn.2d 275, 278, 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. Ct. App. 1985) (“[A] publisher of what the Supreme Court has termed a ‘calculated falsehood’ . . . enjoys no constitutional protection.” (Citations omitted)), rev’d on
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
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
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 “[sjuggest or persuade or attempt to suggest or persuade any voter to vote for or against any candidate or ballot measure” within 300 feet of the entrance to 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 he 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 (1942)]. 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 cam
The chilling effect of the statute on free speech is infinitesimal, if it exists at all. The scope of RCW 42.17.530(l)(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.
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 bar, 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), affd, 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 be. Accordingly, I do not find RCW 42.17.530 (l)(a) facially unconstitutional.
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, 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 [v. San Francisco County Democratic Cent. Comm.], 489 U.S. [214, 228-29, 109 S. Ct. 1013, 1023, 103 L. Ed. 2d 271 (1989)].
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 pro- • cess 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.
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 hes 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, § 8 (“Each house shah be the judge of the election, returns and quahfications 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, § 41 (amend. 26). Few legislators would choose to
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,
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
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(l)(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(l)(c) prohibits advertising that directly or indirectly suggests a person has been endorsed or supported by an organization or person when the
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
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.
Turning to the facts in this case, the trial court held as a
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
In 1938, the Wisconsin Supreme Court considered a state statute prohibiting the pubhshing of false representations pertaining to a candidate or referendum.
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.
Reconsideration denied August 14, 1998.
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.
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] no wing misrepresentations are not constitutionally protected free speech.”).
McIntyre, 514 U.S. 350-51, 115 S. Ct. at 1521. For example, Ohio Revised Code Annotated section 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 section 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).
Then-Professor Bogen aptly and eloquently illuminated the constitutional difference between a mistake of fact and a deliberate lie:
*649 [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).
The majority’s disapproval of RCW 42.17.530(l)(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.
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).
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.
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.
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.
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.
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.
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).
