FALSEHOODS in political advertising are widely regarded as a growing menace in our public life and a source of voter anger. So the media were busier than ever this past election season trying to referee truth in politics, while candidates issued what seemed to be unusually numerous, and fulsome, critiques of their opponents’ honesty. But was that enough?
Legislators and some bureaucrats and newspapers in Washington State think they have found another way to stop political lies: They have passed a unique law and are vigorously enforcing it. Some thirteen other states that have laws against political lies have found them unenforceable on the free speech grounds of the First Amendment and, so, they are watching Washington State’s more novel effort closely. If Washington’s law is sustained in a court case to be heard later this month, it is sure to be replicated in many other states and, perhaps, nationally.
If that happens, our politics are likely to grow even worse.
Washington’s law, passed inl984, was crucially revised in 1988 to marry the
act’s prohibition against publishing campaign falsehoods with the libel action standards laid out thirty years ago by the Supreme Court in N.Y. Times v. Sullivan. This was thought to assure the law against a First Amendment challenge.
Under the rewritten law, the state’s Public Disclosure Commission (PDC) and the Attorney General’s office can pursue and fine candidates accused of producing “political advertising that contains a false statement of material facts.” But, following Sullivan, they must first find that the plaintiff published the falsehood with “actual malice”-meaning “that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false.”
In the public realm, libel is commonly thought to apply only to the media, but there have been very few successful libel suits brought against news organs since Sullivan. “Actual malice” is extremely difficult to prove under most court interpretations. However, “malice” is a subjective term that may turn out to be easier to demonstrate in politics.
This should make the law a concern to candidates, especially controversial ones. If an official government body opens a libel-style suit during a campaign, even if the suit eventually fails in court, the targeted candidate’s election prospects are likely to be damaged. Elections don’t wait for court decisions.
Already, in the political season just concluded in Washington State, the truth-in-politics law was used by proponents of Initiative 573, the term limits act, to gain a temporary restraining order against untruthful radio ads being run by the initiative’s opponents. The ads, among other things, accused initiative backers of supporting off-shore oil drilling and the introduction of supertankers into Puget Sound, charges which the initiative’s backers angrily denied.
Initiative opponents defended the ads as illustrative of a “clout” issue: A state without seniority in its congressional delegation supposedly would be powerless to prevent such things as oil-dribing and supertankers. In Tacoma, a superior court judge ordered the ads stopped, saying the initiative’s opponents did not have the right to “lie, cheat, and steal.” It may have been an historic precedent for court intervention in the course of an election campaign.
Two days later, and only five days before the election, the state Court of Appeals lifted the restraining order on grounds that the lower court had probably erred in not following the process prescribed under the truth-in-politics law. Moreover, final disposition of the case was put off until after the election.
The role of the courts in the Initiative 573 case created what can only be
described as a campaign mess, a perfect example of the incompatibility of
political speech, where timing and nuance are often crucial, and the plodding legalism of the court system, with its overwhelming concern for delicate points of law rather than the large public questions that are before voters ffi an election race. The initiative passed on election day, but who knows how many votes, one way or another, were influenced by the state court interventions on both sides of the initiative question?
In the future, court-wise candidates and groups are sure to use the state law as a campaign weapon, timing suits, rulings, and much of their campaign strategy to legal gambits. Lawyers thus assume a growing role in political races. All this can only further deflect interest from the issues under debate and a common-sense rendering of voter judgment.
There is also the threat of fines in a fibel-style suit, which can be harder for a candidate or a temporary campaign group to bear than for an established business, especially once the campaign is over and fundraising efforts are disbanded.
Political candidates and groups might have to start carrying libel insurance, the way newspapers do, which would be one more step toward making politics a purely professional enterprise.
The danger of personal libel lawsuits, in any event, adds one more disincentive for people to engage in political activity in the first place.
So far, none of these problems seems to bother officials or much of the media in Washington State. Without protest, the Washington State Public Disclosure Commission already has fined a Port of Bellingham Commissioner for alleging that another candidate opposed the building of a new ferry terminal, when she had only raised questions about it. The $1,500 fine was paid. A man who opposed a city incorporation measure in the community of Federal Way also paid a $100 fine after acknowledging that he had distributed his campaign materials even after leaming that they contained errors.
Last April, the PDC’s work began to attract more attention when a mayoral
candidate in the suburban Seattle town of Redmond was fined $2,500 for
allegedly publishing untruths about an opponent. This decision was widely
reported and actually was praised editorially by at least two Seattle area
newspapers. Explained an editor of the suburban Bellevue Journal American in an interview, “You’re not going to weed out some of this stuff (political untruths) until you start levying some fines.” The Redmond case is under appeal.
In all of these cases, the PDC, advised by its legal counsel, made findings of “actual malice.”
Then, in May, responding to a citizen complaint, the commission found “apparent violations” of law in the campaigns of two groups opposing initiative measures that had been on the 1991 ballot. These were Initiative 119, the “Death with Dignity” bill (tagged a “euthanasia bill” by opponents), which had failed at the polls, and Initiative 120, which had passed, thereby establishing in state law the Supreme Court’s Roe v. Wade ruling on abortion.
However, the PDC in these cases declined to act further and instead turned the charges over to a somewhat reluctant Attorney General Kenneth Eikenberry for “review and appropriate action.”
That raised the financial as well as the political stakes. The PDC, under the new law, can only impose fines of up to $2,500, but the Attorney General can ask a court for fines of up to $10,000 per count, plus costs and fees.
Both Seattle dailies, the Times and the PostIntelligencer, urged the Attorney General to take the accused political committees to court. The Tacoma News Tribune reconunended caution, waming against “[email protected] campaign rhetoric,” but did not attack the law. In the end, the Attorney General declined to find factual grounds for pursuing the anti-abortion committee, but he did decide to prosecute the opponents of the Death with Dignity initiative.
The essense of the state’s case against the “119 No!” committe, which was
headed by a hospice nurse and a retired accountant and backed by the Catholic Conference, the state medical association, and Human Life of Washington-is that its ads falsely claimed that the initiative “would let doctors end patients’ lives without benefit of safeguards.” According to the state, there were safeguards in the initiative.
Surprised and incensed by this claim, initiative opponents now point to post-election statements by initiative backers who acknowledged that they should have included better safeguards in their proposed act. But the state is expected to reply that the opponents knew very well the difference between no safeguards and inadequate safeguards.
The pending suit is set to be decided this month in Thurston County Superior Court in Olympia, the state capital. Even the outcome of the factual findings is uncertain. How safe, for example, does a “safeguard” have to be before qualifying as one? But, even if the facts do appear to the court as the state represents them, the U.S. Supreme Court, in Sullivan and subsequent cases, provided wide First Amendment protection for error-including the error of hyperbole.
SOME people have forgotten that Sullivan, after all, was at least as much a
political speech case as a press case. The targets of the Montgomery, Alabama, police commissioner who brought the suit were not only The New York Times, but also a group of Alabama ministers whose names were signed to the advertisement (“Hear Their Rising Voices”) which the Times, indeed, only published. That ad did contain some factual errors, but Justice William J. Brennan, Jr.’s opinion reversing the conviction rulings of the lower courts disposed of the issue. Brennan quoted approvingly from James Madison’s Report on the Virginia Resolutions against the Sedition Act of 1798: “Some degree of abuse is inseparable from the proper use of everything.”
No distinction is made in Sullivan, nor does there appear to have been any in James Madison’s mind, between free speech in politics and in the press. Nor should there be; the two are often linked. As Anthony Lewis asserts in Make No Law (1991), his history of Times v. Sullivan, Police Commissioner Sullivan obviously had a political purpose behind his libel suit. That was “to transform the traditional libel action, designed to repair the reputation of a private party, into a state political weapon to intimidate the press” on civil rights issues.
The Washington law that seeks to use libel law standards to police campaign
materials may be better intended than Commissioner Sullivan’s suit, but,
ultimately, its uses could be just as invidious and dangerous. The state now has a weapon to intimidate political candidates and even citizen participants in public initiative campaigns. If the case against Initiative 119 succeeds, indeed, it will be possible even to find that a group of people libeled an issue!
“Chilled” by this prospect, how can public debate remain, in justice Brennan’s phrase, “uninhibited, robust, and wide-open”? Why even bother with the messiness and nastiness of politics at all, indeed, if a government committee can determine political “truth” for us?
Thomas G. Holcomb, an Assistant Attorney General prosecuting the “119 Vote
No!” committee, acknowledges the consitutional obstacles the state law faces in court and predicts that the Initiative 119 case may go “all the way” to the U.S. Supreme Court.
Meanwhile, however, employment of the Washington law may reflect significant changes beyond this new legal strategy for prohibiting “malice” as well as error in political speech.
It seems to me that a double standard is developing in some people’s attitudes towards the First Amendment, wherein media and various protest groups outside the field of electoral competition (e.g., flag burners) are thought, effectively, to possess stronger free speech protections than do pohticians and other citizens actually engaged in direct political activity.
The Seattle-area newspapers, for example, are rightly “man-the-barricades!” defenders of the First Amendment when their own accuracy or honesty is challenged. But they readily called for prosecution of the Redmond mayoral candidate and the citizen groups opposing the two 1991 initiatives.
Nor are they alone in failing to see the First Amendment as at least equally applicable to politicians as to journalists. Stewart Jay, a professor of constitutional law at the University of Washington who helped write the text of Initiative 120 and somehow was also asked to testify on First Amendment issues at the disclosure commission hearing on the two initiatives, assured the commissioners that the state’s act to protect political truth would meet a First Amendment test. In a later interview, however, he acknowledged that the state law, in practice, is harsher than anything applied to the media. And he was careful to make clear that he would not want to see such a law applied to the media, either, since they, unlike politicians and campaign groups, must operate under the pressure of limited information, deadlines, and similar “difficulties.”
IT is likely that hardly anyone engaged in politics would agree with this
distinction between the “difficulties” of the media and those of political
campaigns. Neither did the American Civil Liberties Union, which recently
decided, strictly on constitutional grounds, to intervene on behalf of the
defendants in the Washington suit. But isn’t the professor’s rationalization for preferential consti-tutional consideration increasingly common, or at least a growing temptation, among many others in society?
In the past, there was perhaps a better understanding that the necessary price of enjoying broad democratic choices is the effort required by the voter himself to sort out the truth in the expressions of political contenders.
J.S. Mill, in On Liberty, noted 130 years ago that “…(T)o argue sophistically, to suppress facts or arguments, to misstate the elements of the case, or misrepresent the opposite opinion… all this, even to the most aggravated degree, is so continually done in perfect good faith… that it is rarely possible on adequate grounds conscientiously to stamp the misrepresentation as morally culpable.”
Yet we are in an age of legalism and blaming wherein political adversaries seek to “criminalize policy differences,” in author Mark Helprin’s famous phrase.
Officials not only are driven from office for something they said, but also are often investigated, accused of “lying” to Congress, threatened with prosecution, and hounded right up to the day their case is dismissed in court (and sometimes afterwards). Often, the worst damage done by legal action comes not from the ultimate court decision but from the expenses and notoriety borne by the defendant and from the public’s loss of an official’s full attention and services during the ordeal.
Meanwhile, newspeople garland one another with awards for reporting on classified government documents and toast those colleagues (which are almost all of them) who refuse to divulge story sources to legal officers.
In practice, then, some in the media are a lot quicker to accord themselves a certain civil latitude in public discourses latitude that doesn’t seek fierce personal sanctions for rhetorical errors or offenses-than they are to people in politics.
This is nothing new, of course. The age-old power struggle between the press and politicians may be desirable and, in any event, is inevitable. But why should one side in the struggle demand constitutional protections that it will not allow the other?
THERE is another power contender looming in the background of this issue, and that is the apparatus of government itself. Coincident with the electorate’s alienation from politicians has been the politicians’ preoccupation with the growing regulatory interest of government in the conduct of politics. As with government regulation of the economy, some regulation of politics may be necessary, but overdoing regulation can contort and crush its original purposes.
If a politician knows that he is more likely to be ruined politically and even financially by a government committee set up to determine official campaign truths than he is to be defeated by the voters, with whose requirements will he strive first to confonn? Sometimes, fear of the government committee may make him eschew the wild campaign slur, but on other occasions it will make him hold back or hedge well-justified advocacy in order to serve what government officialdom considers true. How, thereafter, can elected officials call themselves the stewards of government on the people’s behalf when it is the institutional government that is baby-sitting them?
In Olympia, Washington, the director of the state Public Disclosure Commission, Graham Johnson, says that trying to adjudicate the truth and falsity of political statements makes him “uneasy” and takes the commission away from the primary job it was established to perform, which is monitoring campaign spending. But official authority to determine political truth, which the current state law gives the PDC, is eventually sure to seduce even the cautious user. The next generation of bureaucrats and commissioners will forget that their job was ever anything so mundane as monitoring campaign donations and spending reports.
In Times v. Sullivan, addressing similar dangers, the Supreme Court made its central reference point the nation’s unpleasant experience of the Sedition Act of 1798. We were reminded by the Court that it was James Madison, again, who pointed out the defining difference between the England of common law and the America of the written constitution: In England the people were subjects of the crown, while in America the people themselves were sovereign. As Madison once said in the House, in this country “the censorial power is in the people over the Government, and not in the Government over the people.”
If, in our time, the First Amendment cannot protect direct political speech from government censorship and punishment, then ultimately no public speech is safe, and the people really will not be sovereign, after all.