Has our State’s highest court condoned political lies or did it merely up hold constitutional free speech?

The Washington State Supreme court in a 5 to 4 decision has recently made the national news by it’s ruling that political lies told about an opponent in a political campaign are protected speech. Even though the lies were deliberate, malicious and false, the court held the lies were speech protected by the First Amendment. It overturned a law which gave the Public Disclosure Commission power to impose fines or sanctions for telling lies during a political campaign. In this case the winning candidate falsely claimed her opponent had voted against a budget for a youth camp which was a lie and the Commission fined her $1000.

The majority held that the law was "unconstitutional on its face." Justice James Johnson wrote the majority opinion which was joined in by Justices Charles Johnson, Richard Sanders and Susan Owens. Chief Justice Gerry Alexander voted with the majority but in a separate opinion wrote that he agreed the the law as written was overboard and therefore unconstitutional, but that the majority went too far in condoning lies.

The dissent was written Justice Barbara Madsen and joined in by Justices Tom Chambers, Mary Fairhust and Bobbe Bridge. They described the majority opinion as "an invitation to lie with impunity." The dissenters said the majority was wrong in holding false speech made with "actual malice" was protected unless it was defamatory. It also claimed the majority opinion encourages turning political campaigns into "contests of the best stratagems of lies and deceit" so that "honest discourse and honest candidates are lost in the maelstrom."

The majority opinion held only defamatory statements made with actual malice are constitutionally protected, not lies that aren’t defamatory. The dissent says that is entirely incorrect under the 1964 New York Times v Sullivan U.S. Supreme Court holding and other decisions. The dissent said lies made with actual malice but which don’t constitute civil defamation aren’t protected. All lies, the dissent said, are actionable when expressed with actual malice.

Of course, the media had a field day. One Seattle Times Columnist wrote:

"Among the other campaign activity blessed by the justices: hair pulling, lighting bags of dog doo-doo on fire outside campaign Hqs,…Within moments of the state supreme court decision, disgraced drug cheats Marion Jones and Floyd Landis announced plans to relocate to the Evergreen State…"

Not very good press for our Supreme Court and the majority opinion with it’s overly broad and loosly written statements which invite ridicule from the press and public. When writing about constitutional rights courts should be very careful, precise and legally correct.

The case is Marilou Rickert vs State of Washington and PDC