Policing Political ‘Lies’

SEATTLE–Legislators, bureaucrats and newspapers in Washington State think they have found a way to stop political lies: They’ve passed a law and are vigorously enforcing it. Washington isn’t the first state to try this, of course: Some 13 others have passed measures to curb political lying, but all have been found unenforceable on First Amendment grounds. That’s why Washington Stat’s novel effort is being closely watched: If it is sustained in a court case this month, it is certain to be replicated in other states and perhaps nationally.

And if that happens, our politics are likely to grow even worse.

Washington’s law, passed in 1984, was crucially revised in 1988 to marry the act’s prohibition against publishing campaign falsehoods with the libel action standards laid out 30 years ago by the Supreme Court in New York Times v. Sullivan. This was thought to ensure 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.”

It has become harder to bring successful libel suits against new organs since Sullivan. “Actual malice” is extremely difficult to prove under most court interpretations. But “malice” is a subjective term that may turn out to be easier to demonstrate in politics.

That’s what should make the law of concern to candidates, especially controversial ones. If an official government body opens a libel-style suit during a campaign, the targeted candidate’s election prospects are likely to be damaged, even if the suit eventually fails in court. Elections, after all, don’t wait for court decisions.

There is also the threat of fines in a libel-style suit, which can be harder for a candidate or a temporary campaign group to bear than an established business, especially once the campaign is over and fund-raising 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 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 learning 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 recommended caution, warning against “criminalizing 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!” committee, 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 bettersafeguards 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?