Law to Curb Political Lies Runs Afoul of Higher Truth: The 1st Amendment

The good people of the state of Washington have been told not to be so good. Or at least not to demand it of others.

The state Supreme Court last week threw out a law that made lying in political campaigns a crime. The court, in a divided opinion, held that although telling the truth is a good thing to do--even in politics--it is an infringement of the 1st Amendment guarantee of free speech for government to decide what somebody should say, regardless of truth or falsity.

“The very purpose of the 1st Amendment,” the court wrote, “is to foreclose public authority from assuming a guardianship of the public mind. . . . In this field every person must be his own watchman for truth, because the forefathers did not trust any government to separate the true from the false for us.”

Reading the news at his breakfast table, Blair Butterworth, a local political consultant, joked that he couldn’t restrain himself: “Free at last! Free at last!” he shouted.

To his chagrin, however, neither his son nor his dog recognized the import of what had happened. In truth, Butterworth said, the ruling will have little practical effect. The law was difficult to interpret and awkward to enforce, leading to “weird discussions” with state bureaucrats over the nature of truth.

“Some candidates have won by lying and some candidates have lost by lying. I imagine both of those will continue,” he said.

Political professionals agreed that campaigns are not going to start lying just because the law was overturned. They were careful to point out, however, that this is not because politicians are so committed to telling the truth. No, the reason most frequently cited for being honest is that telling lies is bad for business if you get caught.

A handful of states have similar statutes. None has as yet been reviewed by the U.S. Supreme Court. Washington authorities are expected to appeal last Thursday’s decision in the hope that the high court will eventually give some guidance in what is an especially tricky and contentious area of law.

The ruling concerned a campaign over a ballot initiative that would have allowed physician-assisted suicide. Opponents of the initiative, which failed, published a flier asserting the measure so lacked sufficient safeguards that “your eye doctor could kill you.”

Supporters of the measure filed a complaint. The state investigated and sued. A lower court, however, found that no falsehoods were told, that in fact your eye doctor could kill you. This would have ended the case, but the American Civil Liberties Union intervened and asked the state high court to review the constitutionality of the statute.

In a 5-4 majority, the court held to a classic 1st Amendment position: Limiting political speech would have a chilling effect on debate. The minority was incredulous that outlawing malicious lies would harm the electoral process. A dissent declared that the “Washington state Supreme Court becomes the first court in the history of the Republic to declare 1st Amendment protection for calculated lies.”

The ruling comes at a time when the issue of lying has gained new public prominence, due in large part to Kenneth W. Starr’s investigation of whether President Clinton lied to conceal a sexual relationship with former White House intern Monica S. Lewinsky.

As Starr has shown, determining what is true or false is a tricky endeavor.

Perhaps as a measure of the differing concerns of the two Washingtons, the biggest fine--$2,500--levied under the state law involved statements about the size of a city government budget deficit.

Contrary to what you might expect, the state has not exactly been overrun with complaints that lies were being told. Since the statute was enacted in 1990, fewer than 200 complaints alleging violations have been filed with the Public Disclosure Commission, the agency responsible for enforcing the law.

And in only 16 of those cases have violations actually been found. More often, what were alleged to be lies were found to be exaggerations.

The law incorporated U.S. Supreme Court guidelines for defamation suits. Those guidelines say speech is protected, even if false, unless the speaker knew what he or she said was false or had made no attempt to determine if it was. This is commonly referred to as “actual malice.”

“It was the best standard we could come up with,” said Thomas Holcomb, an assistant state attorney general. “We actually thought we were in pretty good shape.”

The court disagreed, relying on the classic position that truth will win out in the marketplace of ideas. “Instead of relying on the state to silence false political speech,” the opinion said, “the 1st Amendment requires our dependence on even more speech to bring forth truth.”