Lies, foul lies – but they’re protected speech

It’s comforting to know that all members of our state Supreme Court agree that it’s a bad thing when our candidates tell big, stinky lies.

“There can be no doubt that false personal attacks are too common in political campaigns, with wide-ranging detrimental consequences,” wrote Justice James Johnson in his majority opinion in Rickert v. Public Disclosure Commission.

“False campaign statements made with knowledge of falsity or reckless disregard of truth or falsity undercut the trustworthiness of the election process,” wrote Justice Barbara Madsen in her dissenting opinion.

So if they agree, what’s the problem? They couldn’t agree if government can punish liars.

With four other justices joining him, Johnson wrote that political lies are protected by the First Amendment to the U.S. Constitution. The government, he wrote, has no business regulating and sanctioning political speech, especially when that speech might be aimed at the government itself.

Johnson was also leery of giving an appointed government body the duty of deciding what was a lie and what was a truth and which lies were bad enough to be punished.

“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,” Johnson wrote.

The best regulator of lies is truth, he argued. A candidate who is lied about can point it out to voters, who will certainly turn against the liar. To do otherwise would place a chill on the exercise of free speech, he argued.

Madsen disagreed: “The majority opinion 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.”

Nearly all political speech should be allowed, she argued with the support of three other justices. That includes opinions and ideas and even exaggerations and spin. Only the defamatory lie told with actual malice – when the teller knows it’s false or doesn’t care whether it’s false or not – would be regulated.

Such speech has never been considered protected speech, even in a political context, she wrote.

A former justice writing in a similar case drew the distinction this way: The statute doesn’t affect “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, ” wrote then-Justice Phil Talmadge in 1998.

With all due respect to former state Sen. Talmadge, when it came to the techniques of political rhetoric, he knew of what he wrote.

News reports of this case were undoubtedly read by some as an example of courts lacking common sense. The back story, however, reveals judges who are struggling to balance free speech with a need for integrity in the political process. These opinions bring anything but clarity to the issue and offer not guidance but confusion.

So take just a moment – one moment only – to feel sorry for the Washington state Legislature. For more than 20 years lawmakers have tried to draft a law sanctioning blatant lies that will meet the Supreme Court’s standards.

Twice the court has slapped them down.

Will legislators try again? Based on a reading of the opinions, especially a concurring opinion by Chief Justice Gerry Alexander, they might.

Alexander was the fifth vote in a 5-4 decision. But he said Johnson “goes too far in concluding that any government censorship of political speech would run afoul” of the constitution.

A future statute that penalizes only defamatory political speech – untruths that harm someone’s reputation – might well be legal, Alexander wrote.

A future court might well rule that lying by candidates is not only a bad thing, but illegal.

Peter Callaghan: 253-597-8657

peter.callaghan@thenewstribune.com

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