Lies and the First Amendment

My father has a favorite joke about politicians. If you see a politician raising his or her eyebrow, then you can be pretty sure that they are telling the truth. If you see a politician scratch their ear, then it’s almost certain that they are being absolutely truthful. But once you see their lips start moving . . . watch out!

In this cynical day and age, it seems we harbor no illusions about the fact that politicians regularly lie to us, or at least stretch truth beyond the point of credulity. But should we punish these lies by fines instead of at the ballot box? Or, more to the point, does the First Amendment protect political lies?

The Washington State Supreme Court is about to confront that question in Rickert v. State of Washington Public Disclosure Commission. Washington State has a statute that makes it punishable by fine to “sponsor with actual malice . . . [p]olitical advertising that contains a false statement of material fact about a candidate for public office.” A Green Party candidate for state senate, Marilou Rickert, published a brochure during her campaign that, in part, accused her opponent, a Democrat incumbent, of having “voted to close a facility for the developmentally challenged in his district.” Turns out that the “facility” referred to was actually for juvenile delinquents, and that the senator had voted against both budget bills that would have closed that facility.

So, after the election, which the incumbent won by a landslide, Rickert was brought before the Public Disclosure Commission and fined for her statement. Nothing else Rickert said during the campaign was challenged; just those twelve words.

Let’s assume that Rickert was flat-out lying when she wrote that statement. While the U.S. Supreme Court has ruled that lying is not protected under the First Amendment, it has repeatedly reminded us that “the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office,” and it has also said that “[t]he First Amendment requires that we protect some falsehood in order to protect speech that matters.” So, is Rickert’s lie the kind of thing the First Amendment should protect?

First, consider the effects of the Washington statute as applied in Rickert’s case. It would be possible for anyone to be fined for the slightest thing they say about a candidate, even so much as a sentence fragment, that turned out to be knowingly false. This would inevitably chill the hard-edged pundits like Paul Krugman and Rush Limbaugh, whose partisanship tends to dance on the edge of the truth. Lies have been a part of rigorous partisanship since Thomas Jefferson employed muckraker James Callender to bring down Federalist opponents. The ballot box has always been the preferred way to discourage such acts, not public commissions.

Additionally, even if the fines are relatively small, they can bog down or bankrupt shoestring campaigns, especially those of third-party candidates like Rickert. The statute would become a sword, and not a shield as it was probably intended. During the 2004 presidential campaign, Geroge W. Bush and John Kerry could have dragged each other before such a public commission repeatedly over statements the other made, from Kerry’s claim that Bush would cut Social Security benefits by 30 to 45 percent (when in fact Bush had repeatedly said he wouldn’t) to Bush’s claim that Kerry advocated a hike of the gas tax, which Kerry hadn’t done in over ten years.

The Washington statute is also eerily similar to the infamous Sedition Act of 1798, which made it a crime to publish or sponsor “false, scandalous and malicious writing . . . with intent to defame [any part of the government,] . . . or to bring [the government] into contempt or disrepute.” Although the Sedition Act never received a ruling on its constitutionality before it was retired, the U.S. Supreme Court has subsequently mentioned that such a law is contrary to the First Amendment.

Lastly, there is already a venue by which candidates for public office can protect themselves from maliciously false speech: defamation. In New York Times v. Sullivan, the U.S. Supreme Court ruled that lies spread with actual malice against public figures like candidates for public office, with proof of damages, were not protected by the First Amendment. However, notably, the Washington State statute contains no requirement that damages be proven, and indeed with the incumbent’s landslide win, no damages here were suffered. And since the Washington statute is essentially a defamation law, it is attempting to expand the range of unprotected speech beyond where the Supreme Court has marked.

Altogether, these are good reasons for the Washington State Supreme Court to find the statute unconstitutional. The First Amendment, after all, is meant most of all to protect political speech, to ensure an open, robust marketplace of ideas in the public arena. America has gotten along just fine without public commissions policing the truth because there’s no better truth-tester than open debate.

Besides, Americans already know how to protect themselves from lying politicians: just check to see when their lips are moving.

James N. Markels is an attorney and a regular columnist for Brainwash. He is the co-author, with the Institute for Justice, of an amicus brief to the Washington State Supreme Court in Rickert v. State of Washington Public Disclosure Commission.