Government Truth Squads

By Wendy Kaminer      

        Thanks to Burton Hanson for alerting us to a ruling by the Supreme Court of Washington State striking down a law that barred political candidates from knowingly or recklessly making false statements about their opponents.  This was an easy case: if the First Amendment means anything at all, it means that government officials may not restrict the content of political speech, as the majority recognized: “The notion that government, rather than the people, may be the final arbiter of truth in political debate is fundamentally at odds with the First Amendment,” Justice James Johnson wrote, in Rickert v Public Disclosure Commission.  “(T)here simply cannot be any legitimate, let alone compelling, interest in permitting government censors to vet and penalize political speech …”

        Justice Johnson’s loud and clear defense of political speech is elementary.  Yet it prevailed by only one vote: Rickert is a 5-4 decision.  In an equally emphatic dissent, Justice Barbara Madsen observed that many other states had statutes proscribing knowingly false statements about candidates; that the state had obvious, constitutional power to “regulate truth or falsity of political speech;“ and that “the use of calculated falsehood is not constitutionally protected.”  By striking down the Washington state law, she stated, the majority was inviting campaigns to “lie with impunity.”
        If this sounds reasonable or even arguable to you, consider precisely how the government would determine what constituted deliberate lying in a political campaign, under Washington state law.  The official truth squad is something called the “Public Disclosure Commission.”  Who would get to serve on this powerful commission?  The majority stressed that PDC members “are appointed by the governor, a political officer.  This group of unelected officials is empowered not only to review alleged false statements made in political campaigns but also to impose sanctions.”  The possibility (or perhaps probability) that the commission’s notion of truth would reflect its political biases as well as ordinary human fallibility, seem clear, yet the statute did not require that the PDC’s decision be subjected to independent judicial review.

        Consider too the facts in the Rickert case:  Marilou Rickert, a green party candidate, falsely stated that, Tim Sheldon, her democratic opponent in a state senate race, had voted to close “a facility for the developmentally challenged.”  (Rickert was touting her allegedly superior commitment to social services.)  Sheldon filed a complaint with the PDC.  He won the election with 79% of the vote.  Nevertheless, the PDC found that Rickert had told two lies about Sheldon’s record and fined her $1,000.

        How were the voters of Washington state served by this decision?  Rickert’s falsehood apparently had no appreciable effect on the election.  But if allowed to stand, the PDC’s ruling would likely have chilled political speech in subsequent elections, making clear that candidates for public office should watch what they say, to avoid incurring the wrath of the governor’s appointees.

        It’s worth stressing that Washington law did not simply authorize government control of political speech; in effect, it authorized political control of political speech.  At best, the notion that a political body like the PDC could be trusted to decide whether a candidate’s speech was sufficiently honest was unwise, even irrational.  Or as Justice Johnson wrote, the law “naively assumes that the government is capable of correctly and consistently negotiating the thin line between fact and opinion in political speech.  Yet political speech is usually as much opinion as fact.”

        It’s interesting: “good government” advocates, who are generally behind “reforms” like the Washington state law, don’t trust voters or the press to distinguish between true and false speech; they don’t trust political candidates to conduct honest campaigns.  Yet they do trust elected officials and their unelected appointees to monitor the content of a candidate’s speech.  Their mistrust of candidates, the press, and even the perceptiveness of many voters is perhaps understandable, although their remedies are unconstitutional.  What makes no sense is their trust of government officials.  Every elected official is a former candidate.  If candidates can’t be trusted to conduct themselves honestly during their campaigns, why trust them once they ascend to office – particularly if you’re inclined to believe that some candidates win by lying to voters.  (I assume that advocates of the Washington statute believe that lying helps determine elections; why else would they seek to regulate it?)

        And who promulgated Washington state’s electoral censorship scheme?  State legislators – former political candidates all.  Like many campaign laws (naturally passed by sitting legislators,) this one may have been designed to protect incumbents, who often have easier races and less need than their challengers to engage in aggressive or provocative campaign speech.  Or maybe the legislators simply trust themselves not to lie – or not to get caught lying.  But they sure don’t trust their opponents, much less their constituents, whose gullibility they presume.  So if I were a Washington state voter, I’d throw the bums out.  People shouldn’t trust with power government officials who don’t trust the people with freedom.

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