Should state law protect misleading campaign attack ads?

Washington has some of the nation’s broadest protections against so-called SLAPP suits.

Those are the defamation or business interference suits filed against residents who might be trying to stop a development or other project. The vivid acronym stands for Strategic Lawsuits Against Public Participation, suits designed to deter or punish those who try to fight developments in front of agencies like planning commissions.

But shortly after a broad expansion of the protections was passed unanimously in 2010, the new law was employed in an unusual and seemingly unanticipated way. Lawyers defending the sponsors of one of 2008’s most controversial negative campaign ads from a defamation claim asked a judge to declare it a SLAPP suit.

On Sunday, I wrote about the lawsuit filed by retired Olympia lobbyist Dick Ducharme against Evergreen Progress. That was the independent expenditure campaign formed to attack Republican Dino Rossi in his 2008 rematch with Gov. Chris Gregoire.

The suit – Ducharme v. Evergreen Progress – ended with an unusual result: a public apology by the sponsor of the negative ad; an admission that the ad was false, misleading and factually inaccurate; a cash payment to Ducharme; and the hiring of a company to help make the apology show up high in Web searches.

The resolution came after three years of legal battles in Columbia County Superior Court over whether Ducharme was entitled to internal emails and other communications among Evergreen Progress, its funders and its consultants.

But before it was resolved through mediation and arbitration, the lawyer for Evergreen Progress proposed to the judge that the new anti-SLAPP law should be triggered. That would mean the court would have to quickly convene a hearing and rule within seven days. It would be Ducharme’s burden to show, by clear and convincing evidence, that he had a probability of winning the case. But he would be required to show that probability without getting any further evidence from Evergreen Progress because the SLAPP law stays all discovery.

How would negative campaign ads be covered by a law intended to shield members of the public from suits that could chill their right to participate in policy debates and petition their government? The new law broadened the activities covered. No longer would it cover only people who speak to a government agency or legislative body about issues pending before those agencies or bodies. It now covers speech outside the formal government setting such as speaking at rallies, encouraging others to get involved, writing letters or blog posts.

The new law includes this broad definition of an “action involving public participation and petition”:

“Any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public concern.”

It passed unanimously, was signed by Gregoire on March 18, 2010, and became effective June 10.

Around that time, Seattle attorney Bruce Johnson invoked it in defense of Evergreen Progress. Johnson knew the enhanced law very well because he helped draft it and was the primary proponent of it, along with the state’s newspaper publishers.

In testimony before the Senate Judiciary Committee, Johnson appealed to the senators’ own interest.

“Statements made during political campaigns are not protected,” Johnson said of the old anti-SLAPP law. “So the fact that you might make a statement outside of the Legislature, there might be a libel lawsuit in your future.”

Johnson testified that quick determination of the merits of a defamation or business interference suit – and quick dismissal if the suit lacked merit – would let those who take part in public controversies escape “death by attorney fees.”

In court, Ducharme’s attorney cried foul.

“(Evergreen Progress wants) to use this new statutory procedure enacted after this lawsuit was filed that (Evergreen Progress’) present counsel helped create, apparently with this case in mind,” wrote attorney Phil Talmadge, a former justice of the state Supreme Court. He thinks the new law is unconstitutional.

Johnson denies that there was any connection between his advocacy for the new law and the Evergreen Progress case. Johnson is one of the state’s leading media lawyers, defending newspapers and TV stations against libel suits and pushing open government cases. He said he has been involved in strengthening the anti-SLAPP law since 2006 because meritless libel suits are often used in an attempt to silence journalists.

Besides, he said, he wouldn’t have been able to use the new law on the ongoing litigation had Talmadge not amended the complaint on May 4 – after the law was signed – to bring in an additional defendant.

Johnson failed to invoke the new law in time and that meant the judge could decide to allow it or not. He decided against Johnson.

Rowland Thompson, executive director of Allied Daily Newspapers, said the expanded law was needed because the old law was too narrow. Thompson said Johnson never mentioned any ongoing litigation during their many discussions about the law. And the best evidence that Johnson was not planning to use it, Thompson said, is that Johnson missed the deadline to file the motion in Columbia County.

“If he was thinking about it in that context, if he thought it was applicable, how would he miss the deadline?” Thompson said.

Sen. Adam Kline, the Seattle Democrat who was the prime sponsor of the new law, said he doesn’t think it can be applied to negative ads.

“I can’t tell you what 147 legislators thought, but it was certainly not my intent that this would apply to an ordinary political campaign for election or for a ballot measure, in the absence of a proceeding before a public body,” Kline said.

The connection – direct or indirect – to the defense of Evergreen Progress raised another issue, this one political. Evergreen Progress was created to help Gregoire get re-elected. Talmadge still believes that Evergreen Progress fought so long and hard in order to protect communications that might be embarrassing, perhaps to the governor’s own campaign.

Did she know she was signing a bill she had a direct political interest in? Gregoire’s legislative liaison says no. The first Jim Justin knew of the attempt to use the new law by Evergreen Progress and Johnson was when I told him about it.

We end with these unanswered questions: Does Washington need to provide special protections for negative campaigning? Should it equate campaign techniques that push the edge of truth and taste with investigative reporting and the rights of citizens to have a meaningful role in public issues?