That's the Washington state case in which our Supreme Court ruled, 5-4, that the state's Public Disclosure Commission could not penalize candidates for false campaign brochures. (For more background, see this article.) As I mentioned in this post, I thought the decision was obviously correct.
But I am not an expert on constitutional law, not even a lawyer, so when I saw that UCLA law professor Eugene Volokh, who is an expert on constitutional law, thought that the decision probably should have gone the other way, I thought I should call his post to your attention.
So my tentative view is that the dissent is correct, and that the law should have been upheld, even as applied to nondefamatory speech. My sense is also that this case is a good candidate for Supreme Court review, since there's a pretty square split on this general question at least between the Washington Supreme Court and the U.S. Court of Appeals for the Sixth Circuit. On the other hand, my sense is that there isn't much other caselaw on this from other circuit courts and other state supreme courts (there is some from intermediate courts of appeals, but they generally don't count much when the Court is measuring the magnitude of a split), so maybe the Court would decide to let the issue percolate in the lower courts for some more years.
I'll leave the legal questions to others, who are more knowledgeable about them — and more interested in them — than I am. But I will say that, even if it is constitutional, this is a terrible law. There are simply too many ways the law could be abused and used to limit free speech. And giving this power to unelected bureaucrats may be even worse than giving it to elected politicians.
Volokh does not address that question in his post, so I emailed him asking him whether he favored the law. In his reply, he said that he hadn't decided and that he would need to know more. He undoubtedly knows far more about the law than I do, but I may know more than he does about our nation's often dirty political history.
Cross posted at Jim Miller on Politics.
(The full name of the case, according to this article, is "Marilou Rickert vs. state of Washington and PDC, but that's too long for a headline.)
Posted by Jim Miller at October 08, 2007 04:41 PM | Email ThisAs a result, I have to agree with Madsen's dissent: "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."
Each of us needs to decide if we want to institutionalize the "right to lie" on the off chance that we can discover said lie BEFORE an election... like the lie about how much Sound Transit was actually going to cost and how much they were actually going to build.If you want agency lies to become the norm, then support this decision.
If you want candidate lies to be as common as rain, then support this decision.
It's up to all of us, individually, but I fear we will regret this decision and this lack of incentive for candidates and agencies to tell the truth.
Posted by: Not Now on October 8, 2007 05:04 PMThe question is what do we see as a solution? We certainly don't want a set up whereby the current liars, along with all of the other benefits of incumbancy, get to punish any challengers for anything the incumbents decide to be untrue.
Posted by: km on October 8, 2007 06:01 PMMy problem with the law, and why I oppose it, isn't that I approve of lying. Far from it! But giving someone in government the authority to decide which political is true and which isn't would be far, far worse than letting liars have free reign and letting the voters sort it out.
Posted by: Kirk Parker on October 8, 2007 07:26 PMThe Court did NOT say that is is OK to lie. In fact, those in politics had best beware what they say in either writing or verbally. To deliberately lie about another person may very well be verbally slander or in writing libel.
To lie about a political opponent or even issue, the US Supreme Court has ruled that a public figure is subject to a higher standard, in that, to lie about a person or an opponent in politics and prove libel or slander, the person doing the lying must have had malicious intent.
Harder to prove, but definitely a serious possibility in numerous cases where political figures lie about their opponents, or even newspapers and media lie about public figures. Have you noticed that when challenged the papers write retractions? That is not without reason. They made mistakes that are proveable and they do not want to be sued.
I had this happen to me once in the early 1990s. A newspaper in this area (the paper is now defunct) made a statement about me in their paper that was totally false and erroneous and got some of my fellow Republicans mad at me. I told the young reporter to correct what he had said, but he refused.
Several years later, I got a call from the young man. Someone in politics also had sued their paper for making false statements about them that were very very damaging to their reputation. The person settled out of court with the paper, with the stipulation that the young reporter who had made the statement had to send a letter of apology to everyone ELSE he had lied about in the paper. I got a call one day from the young man asking for my address. Needless to say, I was still very unhappy with what he had done, and did not want to give my address. He explained what had happened and he mailed me one of those letters of apology. I did not sue, but I have no idea if anyone else did or not since I did not know who else had been libeled by the paper. I do not know whether the one suit and perhaps others had anything to do with that paper going under.
I guess what I am saying here is, if you are a candidate or media or a PAC or a political party, I would highly recommend that you tell the TRUTH. Lies come back to bite you big time!!!!
In addition, I think the Bible says 'All liars will have their part in the lake of fire.'
I personally am getting a little tired of people who CALL themselves good Christians going around ripping other to pieces with lies and innuendos just to gain political power or win elections. It is DISGUSTING!!!!
I would also give some advice: If someone LIES and you catch them LYING in politics or elsewhere, be VERY careful. Don't trust that person. If they lie about someone else, you can bet they are lying behind YOUR back also.
The Court did NOT say that is is OK to lie. In fact, those in politics had best beware what they say in either writing or verbally. To deliberately lie about another person may very well be verbally slander or in writing libel.
To lie about a political opponent or even issue, the US Supreme Court has ruled that a public figure is subject to a higher standard, in that, to lie about a person or an opponent in politics and prove libel or slander, the person doing the lying must have had malicious intent.
Harder to prove, but definitely a serious possibility in numerous cases where political figures lie about their opponents, or even newspapers and media lie about public figures. Have you noticed that when challenged the papers write retractions? That is not without reason. They made mistakes that are proveable and they do not want to be sued.
I had this happen to me once in the early 1990s. A newspaper in this area (the paper is now defunct) made a statement about me in their paper that was totally false and erroneous and got some of my fellow Republicans mad at me. I told the young reporter to correct what he had said, but he refused.
Several years later, I got a call from the young man. Someone in politics also had sued their paper for making false statements about them that were very very damaging to their reputation. The person settled out of court with the paper, with the stipulation that the young reporter who had made the statement had to send a letter of apology to everyone ELSE he had lied about in the paper. I got a call one day from the young man asking for my address. Needless to say, I was still very unhappy with what he had done, and did not want to give my address. He explained what had happened and he mailed me one of those letters of apology. I did not sue, but I have no idea if anyone else did or not since I did not know who else had been libeled by the paper. I do not know whether the one suit and perhaps others had anything to do with that paper going under.
I guess what I am saying here is, if you are a candidate or media or a PAC or a political party, I would highly recommend that you tell the TRUTH. Lies come back to bite you big time!!!!
In addition, I think the Bible says 'All liars will have their part in the lake of fire.'
I personally am getting a little tired of people who CALL themselves good Christians going around ripping others to pieces with lies and innuendos just to gain political power or win elections. It is DISGUSTING!!!!
I would also give some advice: If someone LIES and you catch them LYING in politics or elsewhere, be VERY careful. Don't trust that person. If they lie about someone else, you can bet they are lying behind YOUR back also.
In this age where facts don't matter and opinions are treated as facts, I don't want the GOVERNMENT deciding that a pol is lying because he doesn't beleive in some controversial topic... ie the War or Global warming!
Posted by: Right Wing Wacko on October 8, 2007 11:11 PM