Politicians Lying is Free Speech

The Supreme Court of the state of Washington has ruled that lying politicians are protected by the 1st Amendment.

A sharply divided state Supreme Court has ruled that a law that bars political candidates from deliberately making false statements about their opponents violates the First Amendment right of free speech. In a 5-4 ruling, the high court affirmed a state Court of Appeals ruling that overturned the law. The measure was enacted by the Legislature in 1999, a year after a similar ban on false statements involving initiatives and other ballot measures was thrown out by the state Supreme Court.

State Sen. Tim Sheldon, D-Potlatch, invoked the law in 2002 after his Green Party challenger, Marilou Rickert, distributed a flier that asserted Sheldon voted to shut down a state institution in his district. In fact, he voted against a budget that included closure of the Mission Creek youth camp, although critics said he didn’t do enough to support the facility. He filed a complaint with the state Public Disclosure Commission, which investigated and imposed the maximum fine, $1,000. By then, Sheldon had easily won re-election. The commission action was upheld in Superior Court, but overturned by the appeals bench.

The Supreme Court majority said the new law “like its predecessor, is unconstitutional on its face.” “The notion that the government, rather than the people, may be the final arbiter of truth in political debate is fundamentally at odds with the First Amendment,” Justice James Johnson wrote for the majority, joined by Justices Charles Johnson, Richard Sanders and Susan Owens.

Quite right. While the headlines are amusing, the case in controversy makes clear how ridiculous trying to enforce this law is. Was Sheldon’s opponent making a false statement or merely making a different factual interpretation? Surely, that’s a matter best left up to the voters rather than the legal system.

via Purple Avenger

FILED UNDER: Law and the Courts, US Politics, ,
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Patrick T. McGuire says:

    Isn’t the term “lying politicians” redundant?




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  2. Michael says:

    Don’t they still have an option to take it to civil court for slander and damages, especially if the victim loses an election because of it?




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  3. bob in fl says:

    “The notion that the government, rather than the people, may be the final arbiter of truth in political debate is fundamentally at odds with the First Amendment,”

    Agreed. The flaw in the law, as I see it, is it left the decision of finding fact with a dept of the executive branch rather than the courts, thus encouraging govt censorship. If the law had established criminal penalties to be decided by a court, I believe the law would stand.

    Michael is correct in his assertion that one can sue for libel. However, this is a civil action, not a criminal one.




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  4. Wayne says:

    Politicians are public figures. It is extremely difficult for public figures under the current system to successfully sue for slander.




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  5. mannning says:

    It would be a fine thing if the blogosphere kept track in one place of the statements of politicians systematically, and noted which ones had been shown conclusively to be a lie in subsequent revelations. At the moment, these things are all over the place, with no knowledge of how accurate the falsification of the lie really is. Then too, lying by omission is not so easily proven. It is something to think about…if you want honesty in politics.




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  6. Tlaloc says:

    Quite right.

    No actually blatantly wrong. There is nothing in the first amendment that gives a right to advertise. Air time is in no way the same as free speech. I have a right to say what I want, I do not have a right to have those things broadcast. I may be able to buy air time but I have no right to it, and the government is free to police what I say on the air (for vulgarity or accuracy, as examples).

    Now you can argue that the law is poorly thought out or hard to enforce or whatever, but if you argue it is unconstitutional you’re full of it.




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  7. James Joyner says:

    There is nothing in the first amendment that gives a right to advertise. […] the government is free to police what I say on the air (for vulgarity or accuracy, as examples).

    Political speech is much more highly protected than commercial speech. Government can’t regulate the content of your political speech.




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  8. Every word that a politician utters during a campaign is part of his or her application for a job. If I lie on my resume, or was found out later to have lied, the remedy is for me to lose my job or face sanctions.

    The ballot box, not the courts, is the remedy in these cases.

    As for using the courts to sue someone for slander, that’s appropriate, I think. If someone was spreading lies about me during a campaign, and I hought they were egregious enough, I might use the courts. Even if there was no chance of me winning, I would do it to show that I was not easy to push around, and that it would cost the other politician a bit of money to lie about me.




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  9. Tlaloc says:

    Political speech is much more highly protected than commercial speech. Government can’t regulate the content of your political speech.

    The speech part you are correct about. The broadgast part you are wrong on.

    Show me anywhere in the constitution of its amendments that gives a right to broadcast your speech. Seriously, cause there are plenty of things I’d love to be able to force the networks to broadcast…




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  10. Tlaloc says:

    The ballot box, not the courts, is the remedy in these cases.

    You may be right, my point is that the law is not unconstitutional. It may be a bad idea.




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  11. G.A.Phillips says:

    Show me anywhere in the constitution of its amendments that gives a right to broadcast your speech. Seriously, cause there are plenty of things I’d love to be able to force the networks to broadcast…

    Me too here be a few, i’ll go with daily tallies;

    babies murderd by abortion

    deaths buy overdose

    poeple murdered buy criminals

    criminals caught selling drugs

    how many times a day on tv an uncertain theroy is preposessed as fact

    new taxes suggested

    how many times a day an uncertian theroy is preposessed as fact in print

    thats just a few I could go all day but I won’t.

    oh mabee just one more, how many of this was done by liberals Vs. normal people.




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