Politicians can lie, but they can’t hide


A decision by the Supreme Court of the State of Washington last month had wags and pundits claiming that it is okay for politicians to lie, at least in the state of Washington.

On October 4 the Washington Supreme Court ruled unconstitutional a law that banned publication of “a false statement of material fact about a candidate for public office” in advertisements or other campaign materials, if the statement was made with “actual malice,” or with “reckless disregard to its truth or falsity,” according to a report in the New York Times.

“The notion that the government, rather than the people, may be the final arbiter fo truth in political debate is fundamentally at odds with the First Amendment,” Justice James M. Johnson wrote for four the justices in the majority. A dissenting justice, Barbara A. Madsen, wrote that “the majority’s decision is an invitation to lie with impunity.”

Justice Madsen added that the decision would help 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.”

Utah’s voters now are engaged in a great debate that tests those views. Can voters discern the truth from a fog of claims and counterclaims about school vouchers?

Polls show vouchers losing. What does that mean?

Ironically, perhaps, in the Washington case, the candidate who got the claim wrong, according to the court’s decision, also lost the race:

Mr. Sheldon said Ms. Rickert had violated a state law that made it unlawful to publish “a false statement of material fact about a candidate for public office” in advertisements and campaign materials if the statement was made with “actual malice,” meaning in the knowledge that it was false or with reckless disregard to its truth or falsity.

The commission ruled against Ms. Rickert and fined her $1,000. It found that Mr. Sheldon had not voted to close the facility and that it was, in any event, a juvenile detention center rather than one for the developmentally challenged.

Justice Johnson said the law under which the commission had acted was “a censorship scheme.”

“It naïvely assumes,” Justice Johnson wrote, “that the government is capable of correctly and consistently negotiating the thin line between fact and opinion in political speech.”

Mr. Sheldon had other ways to combat the brochure, Justice Johnson added. Mr. Sheldon and his supporters could have “responded to Ms. Rickert’s false statements with the truth.” And Mr. Sheldon remained free to file a libel suit, though he would have to prove not only falsity and actual malice but also that the statement had harmed his reputation.

In a brief concurring opinion, Chief Justice Gerry L. Alexander said the flaw in the law was that it penalized false “nondefamatory speech,” meaning statements that do not injure reputation. But he said the government should be free to “penalize defamatory political speech.”

The voters figured it out.

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Opinions in Rickert v. Washington:

 

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