Can political candidates lie about their opponents and chalk it up to free speech?
The Washington state Supreme Court is wrestling with how to balance the goal of fair-minded and civil campaigns with the First Amendment's broad guarantee of free speech.
The nine justices presided over a lively debate Thursday over whether the state's law regulating political advertising is constitutional. The case is No. 77769-1, Marilou Rickert vs. state of Washington and PDC.
Political advertising protection
The state's high court previously threw out a law that barred campaign lies and the legislature responded by writing a narrower version that gives the Public Disclosure Commission authority to police candidates' most damaging and malicious lies about their competition.
State Sen. Tim Sheldon, D-Potlatch, invoked the law in 2002 after his Green Party challenger, Marilou Rickert, distributed a flier that asserted that Sheldon voted to shut down a state institution in the district. In fact, he voted against a budget that included closure of the Mission Creek youth camp, although critics said he didn't do enough to support the facility.
He filed a complaint with the PDC, which investigated and imposed the maximum fine, $1,000. By then, Sheldon had easily won re-election. The commission action was upheld in superior court, but overturned by the appeals bench.
The state attorney general's office defended the law Thursday while Rickert's attorney from the American Civil Liberties Union urged the high court to declare the measure unconstitutional.
Walking the thin line
Bill Collins, senior assistant attorney general, said the carefully tailored law allows the commission to "patrol the outer boundaries of political conduct" without improperly infringing on protected free speech.
"Negative advertising turns people off" and malicious and clearly false statements undermine public confidence in elections, he told the court.
"Lying does not advance the political process. It does not advance democracy or the public discourse," he said.
Collins said the law doesn't ban all campaign lies. He also urged the court to defer to the legislature's role in setting policy.
The ACLU lawyer, Venkat Balasubramani, said politicians have to tolerate a certain amount of attack.
"The First Amendment requires a free flow of information," he said, adding that "Roving police ... raise the specter of censorship" and will chill robust debate.
The justices closely questioned both lawyers. Several, most notably Justice James Johnson, said the idea of having political appointees policing political speech is troubling.
Sheldon, a conservative who sometimes votes with the Republicans, is encountering stiff opposition in the Democratic primary as he seeks re-election in the 35th District this year. He also serves as an independent Mason County commissioner.
Justice Richard Sanders noted that the earlier ban on political lies was found unconstitutional, and said this particular falsity doesn't seem to have hurt the senator.
"Senator Sheldon squeaked by with 81 percent," he said.
Collins retorted, "Just because a lie doesn't work doesn't mean we shouldn't try to clean up the process. It's material and not trivial."
Chief Justice Gerry Alexander asked the ACLU attorney if a candidate has any recourse if his or her opponent, say, calls him a pedophile just before the election, or lies about being a war hero.
Justice Barbara Madsen noted that the U.S. Supreme Court already has permitted some restrictions on free speech by upholding restrictions on campaign contributions.
Balasubramani stuck to his guns, saying the state should not allow "micromanagement" of campaigns.
Support for protection
Several groups issued statements supporting Richert's position.
"In our democracy, candidates are free to make very strong statements criticizing their opponents or the governor," said Kathleen Taylor, executive director of the ACLU of Washington. "The government itself should not be in the business of vetting the truth or the falsity of their political speech."
The Institute for Justice, a libertarian law group, agreed, "The idea that the government must shield the people from falsehoods in political campaigns is both patronizing and paternalistic," said Bill Maurer, executive director of the state chapter.
"It assumes that the people are too ignorant or disinterested to determine the facts and that the government must enforce its vision of the truth through prosecution."
If lies are told, it's up to the opponents and the media, not the government, to help correct the record, said Michael Bindas, an attorney with the institute.