Restricting Recklessly/Knowingly False Statements About Political Candidates:

The Washington Supreme Court has just struck down a state statute that bars

political advertising or an electioneering communication that contains a false statement of material fact [made with with knowledge of falsity or with reckless disregard as to truth or falsity] about a candidate for public office [except] statements made by a candidate or the candidate’s agent about the candidate himself or herself.

The government, a majority of the court held, generally lacks the power to restrict even knowingly or recklessly false statements, except in defamation lawsuits brought by the defamed person: The plurality took the view that “only defamatory statements … are not constitutionally protected speech”; the concurrence seemed to agree, reasoning that the statute “is unconstitutionally overbroad” because it “prohibits nondefamatory speech in addition to defamatory speech.” (In this, the Court reaffirmed and extended an earlier decision, Public Disclosure Commission v. 119 Vote No! Committee, 957 P.2d 691 (Wash. 1998).)

1. False Statements of Fact Exception or Libel Exception? The trouble is that the Supreme Court’s tolerance for restrictions on knowingly or recklessly false statements of fact extends considerably beyond libel law:

1. The Court has expressly upheld statutes banning fraud, including fraudulent solicitation of charitable donations (though nonfraudulent solicitation of charitable donations is generally treated as fully protected speech). Illinois ex rel. Madigan v. Telemarketing Associates, Inc. (2003).

2. The Court has expressly upheld the false light tort, which compensates people for the emotional injury of having false or misleading statements said about them that “would be highly offensive to a reasonable person,” even when the statements don’t damage the subject’s reputation. Time, Inc. v. Hill (1967).

3. The Court has suggested, in Brown v. Hartlage, that knowingly or recklessly false statements in election campaigns are generally punishable. The Court struck down the statute involved in that case on the grounds that it didn’t have a knowledge/recklessness requirement, but it reasoned that “There has been no showing in this case that petitioner made the disputed statement other than in good faith and without knowledge of its falsity, or that he made the statement with reckless disregard as to whether it was false or not. Moreover, petitioner retracted the statement promptly after discovering that it might have been false. Under these circumstances, nullifying petitioner’s election victory was inconsistent with the atmosphere of robust political debate protected by the First Amendment.”

4. Lower courts have uncontroversially upheld criminal punishment of perjury and out-of-court lies to government officials (for instance, under 18 U.S.C. § 1001). See, e.g., Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 690 F.2d 1240 (9th Cir.1982).

5. Lower courts have generally upheld trade libel law, which imposes liability for (at least) lies about people’s and corporations’ products, not just about the people themselves. Cf. Bose Corp. v. Consumers Union, 466 U.S. 485 (1984) (assuming, without deciding, that trade libel should be treated like normal libel).

6. Only in one situation has the Court strongly suggested that even some recklessly or knowingly false statements are constitutionally protected: New York Times v. Sullivan (1964) and Rosenblatt v. Baer (1966) strongly suggest that the law can’t punish even deliberate lies about the government (the traditional definition of “seditious libel”), so long as no particular person is mentioned.

7. Finally, the somewhat opaque R.A.V. v. City of St. Paul holds that the government often may not selective punish some false statements but not others; but there are several substantial exceptions to this doctrine — “[w]hen the basis for the content discrimination [within the unprotected category] consists entirely of the very reason the entire class of speech at issue is proscribable,” when “the subclass happens to be associated with particular ‘secondary effects’ of the speech [unconnected to the persuasive or offensive communicative impact of the speech], so that the regulation is ‘justified without reference to the content of the … speech,'” when “a particular content-based subcategory of a proscribable class of speech can be swept up incidentally within the reach of a statute directed at conduct rather than speech,” and when “the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot.”

So the unresolved First Amendment question is: Is there a general First Amendment exception for knowingly or recklessly false statements of fact, with a few exception-to-exception zones of categorical protection (such as false statements about the government, or perhaps false statements about history or science)? Or is there a set of narrower First Amendment exceptions for defamation (said with the proper mental state), speech that puts someone in a false light, fraud, perjury, false statements to government officials, trade libel, and the like, with a broad zone of protection even for false speech outside these narrow exceptions?

My reading of the cases is that they rest on the theory that “there is no constitutional value in false statements of fact” (Gertz v. Robert Welch, Inc. (1974)) and that such statements may be punished at least when said with knowledge that they’re false or with reckless disregard of falsehood. This supports the general-First-Amendment-exception theory. On the other hand, the Court has never made that explicit.

Moreover, even if only certain categories of false statements are punishable, the Court’s upholding the false light tort (in Time, Inc. v. Hill and Cantrell v. Forest City Publishing, Inc. (1974)) suggests that knowingly or recklessly false statements — including nondefamatory ones — about particular people are indeed punishable. The plurality distinguishes false light in footnote 7 by reasoning that “The Supreme Court has indicated that false statements about private individuals made with actual malice, but which are not defamatory, may not be protected speech” but that “the Court has not held that false statements about public figures made with actual malice, but which are not defamatory, are devoid of all constitutional protection.” Yet that doesn’t seem consistent with Hill and Cantrell, which didn’t turn on whether the plaintiff was a public or private figure. In fact, Cantrell noted that

[T]his case presents no occasion to consider whether a State may constitutionally apply a more relaxed standard of liability for a publisher or broadcaster of false statements injurious to a private individual under a false-light theory of invasion of privacy, or whether the constitutional standard announced in Time, Inc. v. Hill applies to all false-light cases.

Both these options seem to acknowledge that liability for falsehoods said with “actual malice” would be available in “all false-light cases,” whether brought by private figures or public figures — the question is whether there should be an extra zone of liability for negligent falsehoods when the plaintiff is a private person. It thus seems to me that the dissent is right in concluding that false statements about particular candidates can be punishable even if they aren’t defamatory.

2. Is the Law Too Narrow? The plurality also suggested that the law was unconstitutional because it was too narrow, since it banned only knowingly/recklessly false statements about other political candidates, and not knowingly/recklessly false statements about any candidate (including yourself), or for that matter knowingly/recklessly false statement about any other person.

But I think the dissent is basically right on this, too: If the speech falls within an unprotected category, then even a limited restriction is constitutional if it complies with R.A.V. The premise for the false statements exception, especially as applied to false light actions, is a combination of the theory that (1) false factual assertions undermine the search for truth in public discussion, and (2) false statements about a particular person especially hurt the subject. This suggests that in the Washington statute, the “basis for the content discrimination [within the unprotected category] consists entirely of the very reason [or, here, reasons] the entire class of speech at issue is proscribable”: The law is punishing statements that are especially dangerous to public discussion (since they are about elections, where sound decisionmaking is especially important, and a decision must be made by the election day, so falsehoods may therefore be especially damaging), and that are especially likely to hurt a particular person (which explains the exception for false statements about yourself). I’m not wild about the exception for knowingly/recklessly false statements about one’s own qualifications, but it doesn’t seem to make the law invalid.

3. Is It Improper To Have the Law Be Enorced by an Administrative Agency? Here, unlike in a libel lawsuit, or even in a criminal libel prosecution (which the Court seemed to uphold in Garrison v. Louisiana (1964), when such prosecutions are limited to knowingly or recklessly false statements), the finding of falsehood is made by an administrative agency — the Public Disclosure Commission — and not by a judge or jury. And I agree with the plurality that such findings can’t stand unless there is independent review by a court of “whether whether there is clear and convincing evidence the respondent uttered the statements with actual malice”; many cases so hold. But I tend to think that the dissent correctly concludes that the remedy for that is to mandate independent review as a constitutional matter, not to strike down the statute altogether.

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.

Note also that Washington didn’t petition the Supreme Court for certiorari in the earlier case on this subject (119 Vote No! (1998)); perhaps the state again won’t ask the Court for review here.