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Eye On Olympia

Supremes’ ruling on political ads: “An invitation to lie with impunity”…

Very interesting ruling out of the state Supreme Court this morning. A deeply divided court threw out Public Disclosure Commission sanctions against former legislative candidate Marilou Rickert.

In 2002, Rickert ran against incumbent state Sen. Tim Sheldon, R-Potlatch. During the campaign, Rickert sent out a mailing that falsely claimed Sheldon had voted to close a camp for the developmentally disabled.

Sheldon protested, filed a complaint with the state’s campaign-finance watchdog — the PDC — and ended up being re-elected by a landslide. Months later, the PDC ruled that Rickert had “sponsored the brochure with actual malice,” as the court opinion said this morning, and fined her $1,000. She appealed to the courts.

In a 5-4 ruling, the high court said that such matters of fact are for voters, not government, to sort out. From Justice Jim Johnson’s opinion:

…In other words, the best remedy for false or unpleasant speech is more speech, not less speech. The importance of this constitutional principle is illustrated by the very real threats to liberty posed by allowing an unelected government censor like the PDC to act as an arbiter of truth.

In the case at bar, Ms. Rickert made knowingly false or reckless statements about Senator Sheldon, a man with an outstanding reputation. Senator Sheldon and his (many) supporters responded to Ms. Rickert’s false statements with the truth. As a consequence, Ms. Rickert’s statements appear to have had little negative impact on Senator Sheldon’s successful campaign and may even have increased his vote.

…Were there injury to Senator Sheldon’s reputation, compensation would be available through a defamation action. As it is, Ms. Rickert was singled out by the PDC for punishment, six months after the election, based on statements that had no apparent impact on the government interests allegedly furthered by the statute. That the statute may be applied in such a manner proves that it is fatally flawed under the First Amendment.

In an unusually blunt dissent, Justice Barbara Madsen blasts Johnson’s opinion, saying that “the use of calculated falsehood is not constitutionally protected.”

The impression left by the majority’s rhetoric, that oppressive government regulation is at issue in this case, is simply wrong.

When cases decided by the United States Supreme Court are properly applied, it is obvious that RCW 42.17.530(1)(a) infringes on no First Amendment rights.

Unfortunately, the majority’s decision is an invitation to lie with impunity.

The majority opinion advances the efforts of those who would turn political campaigns into contests of the best stratagems of lies and deceit, to the end that honest discourse and honest candidates are lost in the maelstrom. The majority does no service to the people of Washington when it turns the First Amendment into a shield for the “unscrupulous … and skillful” liar to use knowingly false statements as an “effective political tool” in election campaigns.


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Richard Roesler covers Washington state news from The Spokesman-Review's bureau in Olympia.

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