Simon A. Rodell, False Statements v. Free Debate: Is the First Amendment a License to Lie in Elections?

60 Fla. L. Rev. 947 (2008) | | | |

TEXT :: Rickert v. Public Disclosure Commission, 168 P.3d 826 (Wash. 2007)

The petitioner, Marilou Rickert, ran as a Green Party candidate for a seat in the Washington state senate. During her campaign, Rickert distributed a brochure that falsely represented the voting record of her opponent, incumbent Senator Tim Sheldon. Sheldon filed a complaint with the Washington Public Disclosure Commission (PDC)-the governor-appointed commission charged with enforcing Washington’s false-campaign-speech statute. The statute prohibited sponsorship, with “actual malice,” of “[p]olitical advertising or an electioneering communication that contains a false statement of material fact about a candidate for public office.” Several months after Sheldon’s landslide re-election, the PDC held an administrative hearing to investigate the complaint. The PDC imposed a $ 1,000 fine, concluding that the brochure contained material false statements, that Rickert sponsored the brochure with actual malice, and that her violation of the statute had been proven by clear and convincing evidence. A Washington superior court judge upheld the fine, but the Washington Court of Appeals reversed. Applying strict-scrutiny review to the statute, the Washington Supreme Court HELD that the statute was unconstitutional because it caused “the government, rather than the people, [to] be the final arbiter of truth in political debate.”


Before Washington passed the statute, candidates could turn only to defamation law when someone made a false statement about them. Defamation law allows an individual to recover in tort for injury to his reputation. The tort allows an individual “to vindicate his good name” and to obtain redress for harm caused by defamatory false statements. A statement is defamatory “if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” To recover for defamation in Washington, a plaintiff must prove that (1) the defendant made a false statement about the plaintiff; (2) there was an unprivileged communication of the statement; (3) the defendant made the statement negligently, recklessly, or intentionally; and (4) the statement damaged the plaintiff’s reputation. For public officials-and for candidates for public office-reputation is especially important. Recognizing the importance of reputation, the common law “presumed” damages from a defamatory statement, allowing a plaintiff to recover without proving actual damage to his reputation.

In contrast, the First Amendment to the U.S. Constitution forbids Congress or the states from passing any law “abridging the freedom of speech.” “Freedom of speech is crucial in a democracy: Open discussion of candidates is essential for voters to make informed selections in elections; it is through speech that people can influence their government’s choice of policies.” The trick, then, becomes finding the appropriate balance between allowing public officials to vindicate their reputations through defamation law and protecting open discourse of political issues under the First Amendment-discourse that would be chilled by potential tort liability.

In New York Times Co. v. Sullivan, the U.S. Supreme Court placed a constitutional check on defamation law, holding that the First Amendment limits a public official’s right to recover for defamation. In New York Times, a civil-rights group paid for a full-page newspaper advertisement asking for donations to support civil-rights protests by African American college students in the South. The advertisement also contained factual errors, including mischaracterizations of police actions in Montgomery, Alabama.

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