State law barring falsehoods in campaign ads struck down

WASHINGTON–False political advertising is protected by the First Amendment, the state Supreme Court in Olympia ruled in mid-June. The court held that the constitution guarantees free speech on political issues even if that speech is a lie.

In a 5-4 ruling with four published opinions, a majority of the high court struck down a state law banning false statements in political advertisements, ruling that the state cannot regulate the content of political advertising.

The court held that the law was “pure censorship.” It chills political speech, deprives voters the right to determine the merits of political initiatives and lacks a compelling state interest in justification, the court said.

“The State’s claimed compelling interest to shield the public from falsehoods during a political campaign is patronizing and paternalistic,” the court said in an opinion by Justice Richard Sanders. “It assumes the people of this state are too ignorant or disinterested to investigate, learn, and determine for themselves the truth or falsity in political debate, and it is the proper role of the government itself to fill the void.”

The case stemmed from allegations by the state that opponents of a 1991 “Death with Dignity” ballot initiative — which sought to authorize physician-assisted suicide — knowingly published false advertising. The “No on Initiative 119” committee published a leaflet that claimed that the initiative would let doctors end patients’ lives without safeguards: “Your eye doctor could kill you,” the leaflet said.

The state sued the committee under a 1984 state law that made it illegal for a person to sponsor, with malice, “political advertising that contains a false statement of material fact.” The law allowed the attorney general, county prosecutors and private citizens to enforce the law by bringing civil actions.

The Thurston County Superior Court rejected the state’s claim, but agreed with the premise of the law, saying that “false statements uttered with actual malice, knowledge of falsity or total disregard” for the truth are “a proper matter for state regulation.”

The American Civil Liberties Union of Washington intervened and decided to use the case to challenge the constitutionality of the law. The state Supreme Court granted direct review.

The attorney general’s office argued that the law was a legitimate attempt by the state to prevent last-minute falsehoods that could sway the outcomes of elections because the other side has no chance to respond. The 119 Vote No Committee and the ACLU countered that the truth or falsity of a statement about a proposed law’s effect cannot be know until after it is passed and put into effect. Existing statutes barring defamation protect the reputations of political candidates and controls beyond that amount to state censorship, they said. The high court agreed and ordered the state to reimburse the ACLU and the 119 Vote No Committee for the cost of attorney fees.

In a dissenting opinion, Justice Philip Talmadge argued that the law is necessary in today’s “win at any cost” political environment. “The majority is shockingly oblivious to the increasing nastiness of modern American political campaigns,” he wrote. (State of Washington v. 119 Vote No Committee)