Truth-in-campaign law struck down

OLYMPIA — A state law prohibiting political candidates from lying about their opponents is an unconstitutional violation of free speech and chills political discourse, a state appeals court ruled yesterday.

The decision from the Court of Appeals Division II stems from a 2002 legislative race and puts in jeopardy one of the state's remaining truth-in-campaigning laws.

The court, in an opinion by Judge C.C. Bridgewater, said the law is unconstitutional because it punishes false political claims whether or not they damaged a candidate — a legal standard for slander or libel claims.

The court also said that because the law allows candidates to "proclaim falsehoods about themselves" the state cannot argue that the law meets its interest "in promoting integrity and honesty in the elections process."

The case began in a state Senate race in the 35th Legislative District. Marilou Rickert, a Green Party candidate in the Southwest Washington district, challenged the longtime incumbent, Democrat Tim Sheldon.

In the campaign Rickert sent voters a brochure claiming that Sheldon "voted to close a facility for the developmentally challenged."

After the election, which he won easily, Sheldon filed a complaint with the Public Disclosure Commission saying Rickert's campaign flier was false.

A PDC investigation determined that Sheldon had not voted for closing the institution and that the facility she referred to was not for the developmentally disabled. The PDC found that Rickert acted with "actual malice or reckless disregard" for the truth because she did not attempt even a cursory check of the facts.

Rickert appealed to a Thurston County Superior Court judge, who upheld the PDC ruling.

But on appeal, Rickert claimed the law was unconstitutional on its face and in the specifics of how it was applied in her case.

While the Court of Appeals did not address all Rickert's claims, it did rule that the truth-in-campaigning law is an unconstitutional violation of the First Amendment's protection of free speech.

The court relied heavily on a 1998 state Supreme Court decision that struck down a similar law prohibiting false statements in initiative and ballot-measure campaigns.

The Supreme Court said then, "In this field every person must be his own watchman for truth, because the forefathers did not trust any government to separate the true from the false for us."

Rickert said the appeals court delivered a clear message: "The government doesn't have any right to tell political candidates what they can and cannot say."

She said existing defamation laws will suffice to protect people against false claims that damage reputations.

The ACLU, which helped represent Rickert in the case, agreed.

"American democracy thrives, in part, because people running for office can say very strong things critical of their opponent or critical of the government and the government itself shouldn't be sorting out what is true and false," said spokesman Doug Honig.

The disclosure commission will review the decision at its regular meeting next week and decide whether to appeal, said PDC executive director Vicki Rippie.

She said the commission's attorneys argued that the law promotes credible campaigns.

"It helps people keep the facts or the issues straight if the speakers can be held to a standard of accuracy and truthful comments," she said.

There are three other truth-in-campaigning cases pending at the PDC, and Rippie said the staff will continue to investigate the claims until the commission gives further direction.

David Postman: 360-943-9882 or dpostman@seattletimes.com