State Supreme Court Overturns Law Regulating Candidates' Speech

News Release: 
Friday, November 20, 2009

The Washington Supreme Court today overturned a law regulating the content of political candidates’ advertisements. The court found the law violates candidates' right to free speech and does not ensure the honesty of elections. The ruling came in a case in which the American Civil Liberties Union represented a candidate for state Legislature whom the government sought to fine for statements she made about her opponent's voting record.

"The notion that the government, rather than the people, may be the final arbiter of truth in political debate is fundamentally at odds with the First Amendment," wrote Justice Jim Johnson in the lead opinion for the court.

"In our democracy, candidates are free to make very strong statements criticizing their opponents or the government. The court recognized that government itself should not be in the business of vetting the truth and falsity of their political speech," said Kathleen Taylor, executive director of the ACLU of Washington.

The ACLU represented Marilou Rickert in her challenge of a fine imposed after the 2002 election for the Legislature. Rickert was a candidate for the Green Party, who issued a flyer comparing her voting record and positions with those of incumbent Democrat Tim Sheldon of the 35th Legislative District. Sheldon won re-election with 79 percent of the vote. After the election, Sheldon filed a formal complaint with the Public Disclosure Commission (PDC) claiming that Rickert lied about him in the flyer. The commission fined Rickert $1,000 for violating the state’s law regulating political advertising.

The court found that the law is too broad because it interferes with constitutionally protected speech and does not accomplish the state’s interest in promoting integrity and honesty in the elections process. Unlike a defamation action – where harm must be proven – the overturned law allows the government to pursue a claim against a candidate even when no harm has been shown. The court was also troubled by the fact that liability for speech was determined by political appointees rather than a jury. The ruling upheld a 2005 appeals court decision invalidating the law.

In Rickert’s campaign, her opponent in fact showed no harm, as he won by an overwhelming margin. The court also noted that the law excludes statements candidates make about themselves, which are equally likely to be erroneous.

"The best remedy for false or unpleasant speech is more speech, not less speech. The importance of this constitutional principle is illustrated by the very real threats to liberty posed by allowing an unelected government censor like the PDC to act as an arbiter of truth," wrote Justice Jim Johnson.

Cooperating attorney Venkat Balasubramani handled the case for the ACLU.

The case is the second successful ACLU challenge of the state’s attempt to regulate the content of campaign statements. In 1998 the Washington Supreme Court overturned an earlier version of the law. In that case, the government tried to penalize the 119 Vote No! Committee for statements against a Death with Dignity initiative that failed to pass.