State v. 119 Vote No! Committee ( 1998 )

Sanders, J.

The Public Disclosure Commission (PDC) alleges the 119 Vote No! Committee violated RCW 42.17.530(l)(a) by publishing false political advertising. We must decide two issues: does RCW 42.17.530(l)(a) violate the First Amendment on its face; and, if not, did the subject advertisement violate the statute. As we conclude, RCW 42.17.530(l)(a) indeed facially violates the First Amendment—the second question falls by the way.

I. Facts

The State of Washington on relation of the Public Disclosure Commission brought suit against the 119 Vote No! Committee, its executive director and its treasurer. The State alleges the Committee published political advertising contrary to RCW 42.17.530(l)(a) during the course of its campaign in opposition to Initiative 119, the so-called “Death with Dignity Act.” Ultimately the initiative went down to defeat at the polls on November 5, 1991. The one-page printed advertisement begins with the words “Vote No!” superimposed over the words “Initiative 119,” Clerk’s Papers (CP) at 18, and generally suggests the initiative invites assisted suicide without sufficient safeguards.¹

RCW 42.17.530(l)(a) prohibits any person from sponsoring, with actual malice, a political advertisement containing a false statement of material fact.* ² The State’s complaint alleged the advertisement distributed by the Committee “contained false statements of material fact, and was published by the Committee with actual malice, that is, with knowledge that the statements contained in the advertisement were false or in reckless disregard of whether the statements were false.” CP at 6. The PDC’s referral arose from a complaint filed by proponents of the initiative. The State’s complaint prayed the Committee and individual defendants be fined up to $10,000 plus costs, attorney fees, and treble damages.

The Committee moved to dismiss for failure to state a claim for which relief could be granted. CR 12(b)(6). The American Civil Liberties Union of Washington (ACLU) intervened pursuant to CR 24 to challenge the facial constitutionality of RCW 42.17.530(l)(a) by declaratory judgment.³ Following briefing and argument, the trial court concluded the advertisement did not contain materially false statements and dismissed. The trial court awarded the Committee attorney fees and costs pursuant to RCW 42.17.4(H)(5).3 ⁴

Notwithstanding dismissal of the principal action against the Committee, the ACLU pursued its claim for a declaratory judgment of invalidity.⁵ The ACLU and the State cross-moved for summary judgment each seeking a declaration as to the statute’s constitutionality under the First Amendment. On stipulated facts concerning the enforcement of RCW 42.17.530(l)(a) the court granted the State’s motion, concluding the statute facially passed First Amendment muster. Both parties appealed. We granted direct review.

II. Standard of Review

“Under CR 12(b)(6), a complaint can be dismissed if it fails to state a claim upon which relief can be granted. Because a trial court’s dismissal under this rule is a holding on a question of law, appellate review is de novo.” Hoffer v. State, 110 Wn.2d 415, 420, 755 P.2d 781 (1988). Likewise, the facial constitutionality of a statute is a question of law which requires de novo review. Timberline Air Serv. Inc. v. Bell Helicopter-Textron, Inc., 125 Wn.2d 305, 311, 884 P.2d 920 (1994).

III. Legal Analysis

RCW 42.17.530(l)(a) provides: “It is a violation of this chapter for a person to sponsor with actual malice . . . [political advertising that contains a false statement of material fact . . . .” The Committee and the ACLU argue the statute is a facially unconstitutional abridgment of free speech. The State asserts its interest in an informed electorate justifies this burden upon political debate.

The constitutional guarantee of free speech has its “fullest and most urgent application” in political campaigns. Brown v. Hartlage, 456 U.S. 45, 53, 102 S. Ct. 1523, 71 L. Ed. 2d 732 (1982) (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 271-72, 91 S. Ct. 621, 28 L. Ed. 2d 35 (1971)). Therefore, the State bears a “well-nigh insurmountable” burden to justify RCW 42.17.530’s restriction on political speech. Meyer v. Grant, 486 U.S. 414, 425, 108 S. Ct. 1886, 100 L. Ed. 2d 425 (1988). This burden requires the court to apply “exacting scrutiny” to RCW 42.17.530(1)(a). Meyer, 486 U.S. at 420. See also Buckley v. Valeo, 424 U.S. 1, 39, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976). Exacting scrutiny will invalidate the statute unless the State demonstrates a compelling interest that is both narrowly tailored and necessary. McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347, 115 S. Ct. 1511, 1519, 131 L. Ed. 2d 426 (1995); Burson v. Freeman, 504 U.S. 191, 198, 112 S. Ct. 1846, 119 L. Ed. 2d 5 (1992). Such burdens are rarely met. Burson, 504 U.S. at 199-200. Ino Ino, Inc. v. City of Bellevue, 132 Wn.2d 103, 114, 937 P.2d 154 (1997), cert. denied, 522 U.S. 1077 (1998) (“The State bears the burden of justifying a restriction on speech.”).

A. RCW 42.17.530(l)(a) infringes on speech protected by the First Amendment

Uninhibited speech “ ‘is the single most important element upon which this nation has thrived.’ ” Nelson v. McClatchy Newspapers, Inc., 131 Wn.2d 523, 536, 936 P.2d 1123 (quoting Guzick v. Drebus, 305 F. Supp. 472, 481 (N.D. Ohio 1969), aff'd, 431 F.2d 594 (6th Cir. 1970), cert. denied, 401 U.S. 948, 91 S. Ct. 941, 28 L. Ed. 2d 231 (1971)), cert. denied, 522 U.S. 866 (1997). Free speech is revered as the “Constitution’s most majestic guarantee,” central to the preservation of all other rights. Id. at 536. Advocacy of one’s political views through leafleting lies at the very core of our First Amendment freedoms. McIntyre, 514 U.S. at 346-47; Meyer, 486 U.S. at 421-22.

The State asserts it may prohibit false statements of fact contained in political advertisements. This claim presupposes the State possesses an independent right to determine truth and falsity in political debate. However, the courts have “consistently refused to recognize an exception for any test of truth—whether administered by judges, juries, or administrative officials—and especially one that puts the burden of proving truth on the speaker.” New York Times Co. v. Sullivan, 376 U.S. 254, 271, 84 S. Ct. 710, 11 L. Ed. 2d 686, 95 A.L.R.2d 1412 (1964).

Rather, the First Amendment operates to insure the public decides what is true and false with respect to governance. Meyer,; 486 U.S. at 419-20; Riley v. National Fed’n of the Blind of N.C., Inc., 487 U.S. 781, 791, 108 S. Ct. 2667, 101 L. Ed. 2d 669 (1988). In Meyer, the Supreme Court explained:

“ ‘The very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind .... In this field every person must be his own watchman for truth, because the forefathers did not trust any government to separate the true from the false for us.’ Thomas v. Collins, [323 U.S. 516, 545 (1945)] (Jackson, J., concurring).” [Grant v. Meyer, 828 F.2d 1446, 1455 (10th Cir. 1987)].

Meyer, 486 U.S. at 419-20 (emphasis added).

Particularly in the religious and political realms, “the tenets of one man . . . seem the rankest error to his neighbor.” Cantwell v. Connecticut, 310 U.S. 296, 310, 60 S. Ct. 900, 84 L. Ed. 2d 1213, 128 A.L.R. 1352 (1940). Therefore, the Supreme Court has recognized that to sustain our constitutional commitment to uninhibited political discourse, the State may not prevent others from “resort[ing] to exaggeration, to vilification of men who have been, or are, prominent in church and state, and even to false statement.” Id. (emphasis added). At times such speech seems unpalatable, but the value of free debate overcomes the danger of misuse. McIntyre, 514 U.S. at 357. For even false statements make valuable contributions to debate by bringing about “the clearer perception and livelier impression of truth, produced by its collision with error.” New York Times, 376 U.S. at 279 n.19 (quoting John S. Mill, On Liberty 15 (Oxford, Blackwell 1947)).

Specifically, the First Amendment prohibits the State from silencing speech it disapproves, particularly silencing criticism of government itself. Threats of coerced silence chill uninhibited political debate and undermine the very purpose of the First Amendment. See Riley, 487 U.S. at 791; Brown, 456 U.S. at 61; Meyer, 486 U.S. at 419-20.

[The Founders of the nation] believed that freedom to think as you will and speak as you think are means indispensable to the discovery and spread of political truth. . . . Believing in the power of reason as applied through the public discussion, they eschewed silence coerced by law—the argument of force in its worst form.

Whitney v. California, 274 U.S. 357, 375-76, 47 S. Ct. 641, 71 L. Ed. 1095 (1927) (Brandeis, J., concurring), overruled on other grounds by Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969). See also New York Times, 376 U.S. at 270. The State cannot “substitute its judgment as to how best to speak for that of speakers and listeners; free and robust debate cannot thrive if directed by the government.” Riley, 487 U.S. at 791. “For speech concerning public affairs is more than self-expression; it is the essence of self government.” Garrison v. Louisiana, 379 U.S. 64, 74-75, 85 S. Ct. 209, 13 L. Ed. 2d 125 (1964).

Instead of relying on the State to silence false political speech, the First Amendment requires our dependence on even more speech to bring forth truth. Brown, 456 U.S. at 61. See also Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974). In the political context, a campaign’s factual blunder is most likely noticed and corrected by the campaign’s political opponent rather than the State. Id. Contrary to claims made by Justice Talmadge in his concurrence, the Supreme Court has refused to recognize the possibility of “ ‘an eleventh-hour anonymous smear campaign’ ” as enough to justify a restriction on speech. McIntyre, 514 U.S. at 352 n.16 (quoting People v. White, 116 Ill. 2d 171, 506 N.E.2d 1284, 1288, 107 Ill. Dec. 229 (1987)). Moreover, a well-publicized, yet bogus, complaint to the PDC on election eve raises the same concern. Therefore, “[t]he preferred First Amendment remedy of ‘more speech, not enforced silence’ thus has special force.” Brown v. Hartlage, 456 U.S. 45, 61, 102 S. Ct. 1523, 1533, 71 L. Ed. 2d 732 (1982) (citation omitted). Underlying our dependence upon more speech is the presupposition “that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all.’ ” New York Times, 376 U.S. at 270 (quoting United States v. Associated Press, 52 F. Supp. 362, 372 (S.D.N.Y. 1943)).

RCW 42.17.530 coerces silence by force of law and presupposes the State will “separate the truth from the false” for the citizenry. The government made a similar attempt to suppress “seditious libel” in the Sedition Act of 1798, 1 Stat. 596 (1798). New York Times, 376 U.S. at 273. That Act made it a crime for any person to write, print, utter or publish any false writings against the government. Id. at 273-74 (quoting 1 Stat. 596). The Act was vigorously condemned as unconstitutional because it inevitably chilled that political debate needed for self-governance; however, it was allowed to expire by its own terms in 1801 before judicial challenge.⁶ Id. at 274, 276. The First Amendment exists precisely to protect against laws such as RCW 42.17.530(l)(a) which suppress ideas and inhibit free discussion of governmental affairs. See McIntyre, 514 U.S. at 357; Mills v. Alabama, 384 U.S. 214, 218, 86 S. Ct. 1434, 16 L. Ed. 2d 484 (1966).

Even assuming, as per Justice Talmadge’s concurrence, that malicious falsehoods against candidates are beyond constitutional protection, this statute has broader reach and brings within its sweep every maliciously false statement of “material fact” whether it is defamatory to an individual or not. Justice Talmadge’s concurrence cites no authority to support its broad claim that all false statements in a political advertisement, including statements relating to issues campaigns, may be prohibited as unprotected speech. Moreover, the statutory requirement that malice be proved by a high standard of proof does not cure the infirmity as the chilling effect of possible governmental sanction will not be lost on the faint of heart.

B. RCW 42.17.530(l)(a) does not serve a compelling state interest

Because RCW 42.17.530(l)(a) infringes upon protected speech, the court must apply “exacting scrutiny.” The State bears the “well-nigh insurmountable” burden to prove a compelling interest that is both narrowly tailored and necessary to achieve the State’s asserted interest. McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347, 115 S. Ct. 1511, 1519, 131 L. Ed. 2d 426 (1995); Burson, 504 U.S. at 198. States rarely meet this heavy burden. Burson, 504 U.S. at 199-200.

The State claims its interest to foster an informed electorate outweighs the imposition upon political expression by RCW 42.17.530(1)(a). The State relies heavily on defamation cases to prove a compelling interest to justify intrusion into public debate citing Gertz, 418 U.S. at 340, which states: “[Tjhere is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in ‘uninhibited, robust, and wide-open’ debate on public issues.” See also Garrison, 379 U.S. at 75 (quoting New York Times Co., 376 U.S. at 270). The State argues the language in these defamation cases applies with equal force to all political speech, even if no one is defamed.⁷

However the State’s rebanee on the law of defamation is misplaced. By its nature defamation concerns statements made by one person against another and is designed to protect the property of an individual in his or her good name.

The legitimate state interest underlying the law of libel is the compensation of individuals for the harm inflicted on them by a defamatory falsehood. . . . [T]he individual’s right to the protection of his own good name “reflects no more than our basic concept of the essential dignity and worth of every human being—a concept at the root of any decent system of ordered liberty.”

Gertz, 418 U.S. at 341 (quoting Rosenblatt v. Baer; 383 U.S. 75, 92, 86 S. Ct. 669, 15 L. Ed. 2d 597 (1966) (Stewart, J., concurring)). Clearly, a competing interest exists in defamation cases which is absent here. As then-Professor Fried explained:

Free speech cases often explain that “[t]here is no such thing as a false idea.” But why may the state intervene to prohibit or punish factually false statements? Defamation and deception are actionable wrongs, perhaps on the reasoning I have already offered: they vindicate private rights invoked by, or at least on behalf of, private individuals. But the First Amendment precludes punishment for generalized “public” frauds, deceptions and defamation. In political campaigns the grossest misstatements, deceptions, and defamations are immune from legal sanction unless they violate private rights—that is, unless individuals are defamed.[⁸]

Charles Fried, The New First Amendment Jurisprudence: A Threat to Liberty, 59 U. Chi. L. Rev. 225, 238 (1992) (footnotes omitted).

However RCW 42.17.530(l)(a) restricts political speech absent the competing interest present in defamation cases, and, unlike a defamation suit, creates a cause of action for the government to pursue against a private person. “The legitimate state interest underlying the law of libel is the compensation of individuals for the harm inflicted on them for defamatory falsehood.” Gertz, 418 U.S. at 341. See also Rosenblatt, 383 U.S. at 93 (“[A]n action for damages is the only hope for vindication or redress the law gives to a man whose reputation has been falsely dishonored.”).

Additionally, the State relies upon the United States Supreme Court’s decision in McIntyre, as well as this court’s decision in In re Discipline of Donohoe, 90 Wn.2d 173, 580 P.2d 1093 (1978), to support its contention that it has a compelling interest to regulate maliciously false speech. But neither case supports its claim.

In McIntyre the Supreme Court held a statute prohibiting anonymous leaflets violated the First Amendment. The Court noted Ohio’s Elections Code contained detailed prohibitions against making false statements. 514 U.S. at 349. Therefore the State asserts McIntyre impliedly suggested laws prohibiting false political statements are constitutional.

However the inference to be drawn from McIntyre is just the opposite. McIntyre explained that speech made in the heat of a political contest receives more protection than any other form of political speech. Id. at 347. The state in McIntyre argued the speech restrictions were necessary because false advertising might be distributed as “an eleventh-hour anonymous smear campaign.” Id. at 353 n.16. The Court explained the statute could not be upheld on that ground because it swept within it speech unrelated to the state’s concern. Id. Describing the statute’s unconstitutional breadth, the Court distinguished between literature supporting or opposing candidates from referenda as “[a] public question clearly cannot be the victim of character assassination.” Id. McIntyre indicates the State does not possess an independent right to determine truth and falsity in public issues.⁹

In Donohoe a judicial candidate made numerous allegedly false statements regarding incumbent judges. The Court disciplined the candidate, claiming the State possessed a unique interest in maintaining the integrity of the judiciary. 90 Wn.2d at 180. However the continuing viability of this precedent is questionable in light of more recent authority which prompted 1995 revisions to the Code of Judicial Conduct. See, e.g., Buckley v. Illinois Judicial Inquiry Bd., 997 F.2d 224 (7th Cir. 1993). Justice Talmadge’s concurrence quotes Burson v. Freeman, 504 U.S. at 199-200, to suggest the State possesses a compelling interest in “ensuring the integrity of the electoral process.” Concurrence (Talmadge, J.) at 650. However, Burson is distinguishable as the statute there dealt with whether campaign materials could be displayed near the entrance to a polling place. The Court did not find a compelling interest to allow the State to determine the truth and falsity of political speech on campaign issues. Moreover, the false statements in Donohoe were directed at another candidate, not statements in an initiative campaign as is the case here.

Additionally, even if the State possessed a compelling interest here, it must also prove the statute at issue is necessary to serve that interest. Burson, 504 U.S. at 199-200. However, the record here demonstrates RCW 42.17.530(l)(a) may be manipulated by candidates to impugn the electoral process rather than promote truthfulness.

Ultimately, the State’s claimed compelling interest to shield the public from falsehoods during a political campaign is patronizing and paternalistic.¹⁰ See Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 223-24, 109 S. Ct. 1013, 103 L. Ed. 2d 271 (1989); Brown, 456 U.S. at 61. It assumes the people of this state are too ignorant or disinterested to investigate, learn, and determine for themselves the truth or falsity in political debate, and it is the proper role of the government itself to fill the void. This assumption is especially flawed in cases like this where the truth of the assertion may be readily tested against the text of the initiative. At its worst the statute is pure censorship, allowing government to undertake prosecution of citizens who, in their view, have abused the right of political debate.

We therefore conclude RCW 42.17.530(l)(a) chills political speech, usurps the rights of the electorate to determine the merits of political initiatives without fear of government sanction, and lacks a compelling state interest in justification.

IV Conclusion

The First Amendment to the United States Constitution renders RCW 42.17.530(l)(a) facially unconstitutional. The ACLU is awarded its reasonable attorney fees pursuant to 42 U.S.C. § 1988 and the 119 Vote No! Committee is awarded its reasonably attorney fees pursuant to RCW 42.17.400(5).

Dolliver and Smith, JJ., concur.

1 The leaflet stated in pertinent part:

Initiative 119: Vote No

IT WOULD LET DOCTORS END PATIENTS’ LIVES WITHOUT BENEFIT OF SAFEGUARDS . . .

• No special qualifications—

your eye doctor could kill you.

• No rules against coercion—

Nothing to prevent “selling” the idea to the aged, the poor, the homeless.

• No reporting requirements—

No records kept.

• No notification requirements—

Nobody need tell family members beforehand.

• No protection for the depressed—

No waiting period, no chance to change your mind.

INITIATIVE 119 ... IS A DANGEROUS LAW

VOTE NO ON INITIATIVE 119

Clerk’s Papers (CP) at 18.

2 RCW 42.17.530 provides:

False political advertising. (1) It is a violation of this chapter for a person to sponsor with actual malice:

(a) Political advertising that contains a false statement of material fact;

(b) Political advertising that falsely represents that a candidate is the incumbent for the office sought when in fact the candidate is not the incumbent;

(c) Political advertising that makes either directly or indirectly, a false claim stating or implying the support or endorsement of any person or organization when in fact the candidate does not have such support or endorsement.

(2) Any violation of this section shall be proven by clear and convincing evidence.

3 The ACLU has standing to assert its claim on its own behalf. A statute that chills a plaintiff’s speech grants standing to that plaintiff and presents a case ripe for adjudication. A plaintiff need not “expose himself to actual arrest or prosecution” to challenge a statute which deters the exercise of his constitutional rights. Steffel v. Thompson, 415 U.S. 452, 459, 94 S. Ct. 1209, 39 L. Ed. 2d 505 (1974). New York Civil Liberties Union, Inc. v. Acito, 459 F. Supp. 75, 81-82 (S.D.N.Y. 1978) (“[The plaintiffs] contend that the existence of the statute, in its present form, leaves forever open the possibility of enforcement against them as well as other non-partisan, non-political groups .... The potential for such a situation, with its clear likelihood of causing chilling effects upon plaintiffs, leads us to conclude . . . that the . . . questions are ripe for declaratory action.”) (quoting American Civil Liberties Union, Inc. v. Jennings, 366 F. Supp. 1041, 1048 (D.D.C. 1973)); Walker v. Munro, 124 Wn.2d 402, 416, 879 P.2d 920 (1994) (“In the First Amendment context, a ‘chilling effect’ on First Amendment rights is a recognized present harm, not a future speculative harm, which allows third party standing when the law in question burdens constitutionally protected conduct.”).

The ACLU engages in the support and opposition of referenda and initiatives, as attested to by the fact they publicly supported Initiative 119. ACLU Br. at 3 n.l. Thus, they themselves are presented with the choice of either risking prosecution under the statute or preemptively tempering their public advertisements concerning proposed initiatives. This Hobson’s choice clearly grants standing to prosecute a declaratory action against the facial unconstitutionality of RCW 42.17.530(l)(a).

4 The trial court also awarded attorney fees and costs to the ACLU under 42 U.S.C. § 1988 because the ACLU successfully prevailed on its claims that the Constitution does not permit the PDC to issue administrative restraints on political speech and that there must be a final determination on the merits before a court may restrain any political speech. The State does not appeal these determinations by the trial court.

5 The ACLU may prosecute its complaint after the trial court dismissed the original, underlying suit. State v. Port of Peninsula, 89 Wn.2d 764, 767, 575 P.2d 713 (1978) (The court has “discretion to retain an intervenor’s suit as a separate action, even if the main action falls.”).

6 Before ascending to the bench Chief Justice John Marshall publicly opposed the acts and pledged, if elected to Congress, that he would “indisputably oppose their revival” without regard to constitutionality. Jean Edward Smith, John Marshall, Definer of a Nation 244 (1996).

7 The State attempts to bootstrap its compelling interest argument by claiming the interest is more compelling alleging the speech here is unprotected. As discussed earlier, RCW 42.17.530(l)(a) impacts protected speech and the discussion concerning compelling interest only further demonstrates this.

8 Justice Talmadge’s concurrence describes this statement as “flat wrong.” Concurrence (Talmadge, J.) at 646. However, to support its claim the concurrence relies upon cases and statutes that are immaterial to Professor Fried’s accurate analysis. Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976) dealt with campaign finance; Burson v. Freeman, 504 U.S. 191, 112 S. Ct. 1846, 119 L. Ed. 2d 5 (1992) dealt with polling place electioneering. RCW 29.51.020(1)(a) likewise deals with electioneering. What relevance any of these have to the point made by Professor Fried, and the issue in this case, is unclear. Certainly they have nothing to do with punishment of general, nonpersonal political statements the state decides are “misstatements, deceptions, and defamations.”

9 Additionally, the implication drawn by Justice Talmadge’s concurrence at page 648 that “[t]he Court impliedly approved” statutory prohibitions against making false statements is thwarted by the Court’s express statement declining to evaluate the constitutionality of the Ohio’s antifraud provisions. McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 351, 115 S. Ct. 1511, 131 L. Ed. 2d 426 (1995).

10 Justice Talmadge’s concurrence claims characterizing this statute as “patronizing and paternalistic” is a “novel approach to constitutional analysis.” Concurrence (Talmadge, J.) at 653. However, we are not alone as the United States Supreme Court has adopted this “novel approach” as well. See Eu, 489 U.S. at 223 CWhen the State “directly hampers the ability of a party to spread its message and hamstrings voters seeking to inform themselves about the candidates and the campaign issues,” it has adopted a “highly paternalistic approach” by “limiting what people may hear . . . ." This approach renders such a law constitutionally suspect.).