Last September, the Court of Appeals decided Rickert v. Public Disclosure Commission,1 in which the court invalidated a statute limiting candidates' political speech, holding that it was facially invalid under the free speech protections of the First Amendment. The case is now before the Washington Supreme Court, which heard oral argument on June 29.
The statute at issue is RCW ¤ 42.17.530(1)(a), which provides, in relevant part:
It is a violation of this chapter for a person to sponsor with actual malice: Political advertising that contains a false statement of material fact about a candidate for public office.2
The only difference between the current statute and its predecessor was the effort to limit its application to statements "about a candidate for public office." The Court of Appeals found the statute to be unconstitutional, for much the same reasons as the Supreme Court had in 1998, "in that it is not limited to defamatory speech because it does not require that the candidate be damaged by the false statements. É Because the statute is not limited to defamatory speech, it is protected speech."3 The statute then failed the court's application of strict scrutiny.4
The case involves a statement made by Green Party candidate Marilou Rickert in a 2002 legislative race against state Sen. Tim Sheldon, D-Potlatch. A flier distributed by Rickert asserted that Sheldon had "voted to close a facility for the developmentally challenged in this district," when in fact Sheldon had twice voted against the 2002 budget act, which eliminated funding for the facility.5 Sheldon won the election with 79 percent of the vote.6
Sheldon, however, did not claim the statement had damaged him and, having won, he had not been damaged in fact, the court found. Lacking damage, there could be no defamation. "Although the stated intent of the legislature," the court said, "was to Ôprovide protection for candidates for public office against false statements of material fact sponsored with actual malice,' the statute does not require any element of damage to the reputation of the maligned candidate."7
Just how far candidates can go may be the question ultimately determined by the Supreme Court. If the court follows its own lead in 119 Vote No!, it is likely to uphold the Court of Appeals and once again leave the state without any restriction on campaign rhetoric.
In 119 Vote No!, a three-justice plurality had strong words against a statute that "chills political speech [and] usurps the rights of the electorate to determine the merits of political initiatives without fear of government sanction."8 The court reasoned "that the public, not the state, should determine truth and falsity in public debate," stating, a "campaign's factual blunder is most likely noticed and corrected by the campaign's political opponent."9
At this point, there is every indication that the Supreme Court, which has a few new members since 1998, will stay the course. At oral argument, Justice Richard Sanders, who wrote the plurality opinion in 119 Vote No!, echoed the Court of Appeals' finding that Sen. Sheldon had not been damaged.
Former Justice Phil Talmadge perhaps sent a signal of his own in 1998. While agreeing in 119 Vote No! that the statute had not been violated and, thus, voting with the other justices to affirm the dismissal of the State's claim, Talmadge was one of four justices who did not find the statute unconstitutional.10 His stinging concurrence chastised what he saw as the majority's endorsement of "First Amendment protection for calculated lies É no matter how egregious the lies may be."11
1 129 Wn. App. 450 (2005).
2 The statute was amended in 1999 to address the Supreme Court's decision in State ex rel. Public Disclosure Comm'n v. 119 Vote No! Committee, 135 Wn.2d 618, 957 P.2d 691 (1998), in which the court also found the predecessor statute facially unconstitutional. That statute "made it unlawful for a person Ôto sponsor with actual malice É [p]olitical advertising that contains a false statement of material fact.'" Rickert, 129 Wn. App. at 456.
3 Id. at 452.
4 Id.
5 Id. at 453Ð54.
6 Id. at 453.
7 Id. at 452.
8 135 Wn.2d at 632.
9 Rickert, 129 Wn. App. at 456 (quoting 119 Vote No!, 135 Wn.2d at 632).
10 Of the four, only Justice Charles Johnson remains on the court.
11 135 Wn.2d at 636 (Talmadge, J., concurring).
