Free speech was the clear winner in a pair of “fair campaign” decisions issued by the Washington Supreme Court this year. Addressing the tension between the public interest in fair campaigns served by the state’s political advertising and campaign finance laws and the free-speech interests of candidates and the media, the Court came down on the side of free speech — but not without struggle.
Lies About Political Opponents Are Constitutionally Protected Free Speech
In Rickert v. Public Disclosure Commission,1 the Court considered the constitutionality of RCW § 42.17.530(1)(a), which prohibits any person from sponsoring, with actual malice, a political advertisement containing false statements of material facts about a candidate. “Actual malice” is defined as acting with “knowledge of the falsity or with reckless disregard as to truth or falsity.”2 The provision was enacted by the Legislature in 1999, a year after a similar ban on false statements was struck down by the Court on First Amendment grounds.3
An incumbent state legislative candidate, Sen. Tim Sheldon, D-Potlatch, invoked the statute in 2002 after his challenger, Marilou Rickert, distributed a flier that asserted Sheldon had voted to close a state youth facility in his district. In fact, Sheldon had voted against the budget that proposed the closure. Sheldon filed a complaint with the Public Disclosure Commission (PDC), which determined that Rickert had violated the statute and imposed the maximum fine, $1,000. The PDC’s action was upheld in Thurston County Superior Court, but overturned by a unanimous panel of Division Two of the Court of Appeals on First Amendment grounds.4
The Supreme Court narrowly affirmed the Court of Appeals in a 5-4 decision authored by Justice James Johnson.5 The majority found that the statute, “like its predecessor, is unconstitutional on its face.” Relying on the U.S. Supreme Court’s decision in New York Times Co. v. Sullivan,6 the majority determined that knowingly false statements about political opponents must be defamatory to fall within the “very narrow” category of political speech that is not protected by the First Amendment.
RCW § 42.17.530(1)(a) regulates protected non-defamatory speech and thus strict scrutiny applies, the Court held. The Court concluded that the statute failed to survive strict scrutiny because: (1) its stated purpose of protecting political candidates is not a compelling state interest; (2) the statute was not narrowly tailored to further the state’s purported interest in preserving the integrity of the election process, because it exempts false statements made by a candidate about himself or herself, and (3) its administrative enforcement procedures were not politically independent and thus were likely to have a chilling effect on speech.
The dissent, led by Justice Barbara Madsen, emphatically argued that deliberate falsehoods are not protected by the First Amendment and strict scrutiny does not apply. The dissent disagreed with the majority’s reading of Sullivan, asserting that the U.S. Supreme Court made clear in Sullivan and in numerous other cases that “the deliberate lie in political debate” is not protected under the First Amendment because such statements “subvert” the political process.
The dissent noted that the actual malice standard is exceedingly high precisely because free speech rights are at issue, and most political speech does not meet that standard. The dissent noted further that the statute’s administrative enforcement procedures and decisions are subject to review by the independent judiciary.
The Rickert decision revealed a close divide among court members on the extent of First Amendment free speech protections. An almost even split exists between those justices who believe that free speech rights are nearly absolute and in almost all cases “the best remedy for false or unpleasant speech is more speech, not less speech” (as evidenced, the majority noted, by Sheldon’s landslide re-election with 79% of the vote) and those justices who believe that some speech is so clearly harmful to candidates and the political process that it is fair game for government regulation. The majority’s approach, the dissent contends, “advances the efforts of those who would turn political campaigns into contests of the best stratagems of lies and deceit,” to the detriment of “honest discourse and honest candidates.”
Statutory “Media Exemption” Protects Radio Talk-Show Hosts’ On-Air Campaign Promotion
The Fair Campaign Practices Act (FCPA)7 exempts certain editorials, commentaries and news reports from contribution reporting requirements. In San Juan County v. No New Gas Tax,8 the Court considered whether the FCPA’s “media exemption”9 encompassed radio talk-show hosts’ on-air solicitation of funds, votes and other support for a ballot initiative campaign.
The case began in 2005, when two talk-show hosts, Kirby Wilbur and John Carlson, with regularly scheduled programs on Seattle radio station 570 KVI AM, used their shows to launch a ballot initiative to repeal a statewide fuel tax approved by the Legislature. Wilbur and Carlson encouraged listeners to contribute funds to the initiative campaign, to visit the campaign’s Web site and offices to obtain petitions, and to circulate and gather signatures on the petitions to qualify the initiative for the ballot.
The Thurston County Superior Court ruled that KVI and its owner, Fisher Communications, had violated the FCPA by failing to report the on-air promotion as an in-kind corporate contribution. The trial court found that the broadcasts constituted “political advertising” and fell outside the FCPA media exemption.
The Supreme Court reversed the trial court in a unanimous decision, holding that the media exemption protects media companies that publish or broadcast political campaign promotions as part of their regular news business. The Court also determined that the on-air promotions did not constitute “political advertising” under state regulations because they occurred during the “content” portion of broadcasts, as opposed to the commercial advertising period, when payment is normally required. The mere fact that a broadcast has value to a campaign or includes solicitation of support, the Court said, does not convert “commentary” into “advertising” when it occurs during the content portion of a broadcast for which payment is not normally required.
In contrast to its decision in Rickert, the Court in No New Gas Tax had no trouble agreeing that the FCPA’s media exemption represents a policy choice by Washington citizens to accord full protection to the First Amendment rights of the media, even at the expense of the countervailing public interest served by the FCPA. The Court noted, however, that as a legislative policy choice the media exemption is subject to modification or limitation.
The fundamental question, therefore, which the Court did not address, was whether and to what extent the First Amendment requires a media exemption. The Rickert decision suggests the Court would have trouble agreeing on the answer to that question.
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Criminal Prosecution Is Possible for Filing False Campaign Finance Reports
In a third notable decision, which arose out of Seattle’s so-called “Strippergate” scandal, the Court held for the first time that those who knowingly file false campaign reports, or who cause such reports to be filed, may be subject to criminal prosecution.
State v. Conte10 came before the Court through an appeal by a Seattle strip-club operator, his father and two long-time associates, who local prosecutors accused of funneling illegal campaign contributions to Seattle City Council members in 2003. The scandal became widely known as “Strippergate.”
Prosecutors asserted that the four had participated in a scheme to bypass state campaign-contribution limits by reimbursing campaign donors for their contributions to Council members. Prosecutors charged the defendants with violating the state’s public records statute,11 which is a criminal offense, by causing false documents to be filed with government agencies — in this case, campaign finance reports that concealed the true source of campaign contributions. The King County Superior Court dismissed the charges on the grounds that the Public Disclosure Act (PDA),12 which requires disclosure of campaign contributions, was the controlling statute and permitted only civil penalties for the alleged misconduct.
The Supreme Court, in a 6-3 decision, reversed based on its determination that the trial court had incorrectly interpreted the PDA. The Court found there was insufficient evidence to conclude that the people or the Legislature intended the PDA to supersede the public records statute. Therefore, concluding that the PDA’s civil remedy provisions did not displace the criminal penalty contained in the public records statute, the Court reinstated the criminal charges against the defendants.
Conte thus leaves open the threat of criminal prosecution for filing false disclosure reports. The potential for prosecution remains limited for practical purposes, however, as criminal liability only attaches to misconduct that is knowing and intentional.
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Vickie L. Wallen practices political law and labor/employment law at Perkins Coie LLP. She is a member of the KCBA Fair Campaign Practices Committee.
1 2007 Wash. LEXIS 716, No. 77769-1 (Oct. 4, 2007).
2 RCW § 42.17.020(1).
3 See Public Disclosure Comm’n v. 119 Vote No! Committee, 135 Wn.2d 618 (1998).
4 Rickert v. Public Disclosure Comm’n, 129 Wn. App. 450 (2005).
5 Justices Charles Johnson, Sanders and Owens joined in the opinion. Chief Justice Alexander concurred that the statute at issue was overbroad, but in a separate opinion wrote that the Court went too far in holding that the First Amendment forbids virtually any government regulation of political speech.
6 376 U.S. 254, 84 S. Ct. 710 (1964).
7 Initiative 134, The Fair Campaign Practices Act (Laws of 1993, ch. 2, §§ 1-36).
8 160 Wn.2d 141 (2007).
9 RCW § 42.17.020(15)(b)(iv).
10 159 Wn.2d 797 (2007). The U.S. Supreme Court denied certiorari on October 29. 2007 U.S. LEXIS 11812.
11 RCW § 40.16.030.
12 RCW ch. 42.17, et seq.
