Campaign Lie Law Debated By State, Aclu

Campaign lies are a form of free speech that should not be controlled by the state, civil libertarians told the Supreme Court on Wednesday.

But a state lawyer countered that the state has every right to control campaign speech to ensure that voters are getting fact rather than fiction on which to base their votes.

At issue is the constitutionality of a 1984 state law banning false political advertising. The law makes it illegal for a person to sponsor, with malice, “political advertising that makes a false statement of material fact.”

The law allows the attorney general, county prosecutors and private citizens to enforce the law by bringing civil actions. If the state Public Disclosure Commission sides with them, the offender can be fined up to $10,000 for each violation and election results can be voided.

The American Civil Liberties Union asked the high court to overturn as unconstitutional a Superior Court judge’s 1995 ruling that “false statements uttered with actual malice, knowledge of falsity or total disregard” for the truth are “a proper matter for state regulation.”

In that same ruling, Thurston County Superior Court Judge Paula Casey rejected a claim that foes of a 1991 “Death With Dignity” initiative had lied in the campaign’s final days. Backers of the physician-assisted suicide measure, Initiative 119, said foes lied when they sent out a leaflet saying even a person’s eye doctor could kill them.

Casey said the statement was a matter of opinion about the potential effect of the law rather than an outright lie. The initiative failed at the polls.

That case perfectly illustrates the law’s basic weakness, said ACLU attorney David Stobaugh and “No on Initiative 119” attorney Christopher Kane.

The truth or falsity of a statement about a proposed law’s effect can’t be known until after it is passed and put into effect, Stobaugh said.

“You can’t libel the law,” Kane said.

Falsehoods that damage the reputations of people, such as political candidates, can be controlled through existing statutes barring defamation, they said. Controls beyond that are “overbroad” and amount to state censorship, they said.

Justice Phil Talmadge asked Kane if there is “no compelling state interest” to regulate political advertising “no matter how egregious the lies?”

Only if the lie damages a “private interest,” such as a person’s reputation, in which case the person can bring a defamation suit, Kane responded.

Assistant Attorney General Chip Holcomb disagreed.

He said the law is a legitimate attempt to prevent last-minute falsehoods that sway the outcomes of elections because the other side has no chance to respond.

The intent of the law is not to punish opinions but to focus on the truth or falsehood of facts uttered by campaigners.

“This case is not about the government’s ability to determine” the truth or falsity of political opinions, but about “what can be shown with clear and convincing evidence to be a clear misstatement of fact made with actual malice,” Holcomb said.

The Supreme Court will rule at a later date.