Rickert v. State, Public Disclosure Com'n, 77769-1.

• Citation: 161 Wn.2d 843,168 P.3d 826
• Decision Date: 04 October 2007
• Docket Number: No. 77769-1.,77769-1.
• Parties: Marilou RICKERT, Respondent, v. STATE of Washington, PUBLIC DISCLOSURE COMMISSION; and Susan Brady, Lois Clement, Earl Tilly, Francis Meartin and Mike Connelly, members of the Public Disclosure Commission, Petitioners.
• Court: United States State Supreme Court of Washington

168 P.3d 826

161 Wn.2d 843

Marilou RICKERT, Respondent, v. STATE of Washington, PUBLIC DISCLOSURE COMMISSION; and Susan Brady, Lois Clement, Earl Tilly, Francis Meartin and Mike Connelly, members of the Public Disclosure Commission, Petitioners.

No. 77769-1.

Supreme Court of Washington, En Banc.

Argued June 29, 2006.

Decided October 4, 2007.

William B. Collins, Linda A. Dalton, Jean Marie Wilkinson, Attorney General's Office, Govt & Enforcement, Olympia, for Petitioners.

Venkat Balasubramani, Aaron Hugh Caplan, ACLU of Washington, Seattle, for Respondent.

William R. Maurer, Michael E. Bindas, Seattle, for Amicus Curiae (Institute for Justice Washington Chapter).

J.M. JOHNSON, J.

¶ 1 The United States and Washington Constitutions both protect the right of free speech, and political speech is the core of that right. The notion that a censorship scheme like RCW 42.17.530(1)(a) may be constitutionally enforced by a government agency erroneously "presupposes [that] the State possesses an independent right to determine truth and falsity in political debate." State ex rel. Pub. Disclosure Comm'n v. 119 Vote No! Comm., 135 Wash.2d 618, 624-25, 957 P.2d 691 (1998) (plurality opinion). Yet, "`[t]he very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind.'" Id. at 625, 957 P.2d 691 (internal quotation marks omitted) (quoting Meyer v. Grant, 486 U.S. 414, 419, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988)). This court has previously agreed that state censorship is not allowed: "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.'" Id. at 626, 957 P.2d 691 (quoting Riley v. Nat'l Fed'n of Blind, Inc., 487 U.S. 781, 791, 108 S.Ct. 2667, 101 L.Ed.2d 669 (1988)). The present case provides an opportunity to vigorously reaffirm the law on this vital constitutional issue.

¶ 2 In 119 Vote No! Committee, this court struck down former RCW 42.17.530(1)(a) (1988). That version of the statute prohibited any person from sponsoring, with actual malice, a political advertisement containing a false statement of material fact. The legislature subsequently amended the statute to proscribe sponsoring, with actual malice, a political advertisement containing a false statement of material fact about a candidate for public office. LAWSof 1999, ch. 304, § 2(1)(a). Like the Court of Appeals below, we conclude that the legislature's modification of the statutory prohibition fails to rectify its unconstitutionality.¹ RCW 42.17.530(1)(a), like its predecessor, is unconstitutional on its face. Accordingly, we affirm the Court of Appeals decision to reverse the trial court's order affirming enforcement of RCW 42.17.530(1)(a) against respondent Marilou Rickert.

¶ 3 While other states have enacted statutes like RCW 42.17.530(1)(a),² and some courts have upheld these statutes,³ such holdings should be neither admired nor emulated. 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. Because RCW 42.17.530(1)(a) rests on the validity of this erroneous assumption, it must be struck down.

FACTS AND PROCEDURAL HISTORY

¶ 4 In 2002, Ms. Rickert challenged incumbent Senator Tim Sheldon in the election for state senator from Washington's 35th Legislative District. During the campaign, Ms. Rickert sponsored a mailing that included a brochure comparing her positions to those of Senator Sheldon. In part, the brochure stated that Ms. Rickert "[s]upports social services for the most vulnerable of the state's citizens." Admin. Record (AR) at 10. By way of comparison, the brochure stated that Senator Sheldon "voted to close a facility for the developmentally challenged in his district." Id. In response to the latter statement, Senator Sheldon filed a complaint with the Public Disclosure Commission (PDC), alleging a violation of RCW 42.17.530(1)(a).

¶ 5 RCW 42.17.530(1) provides, in relevant part:

It is a violation of this chapter for a person to sponsor with actual malice:

(a) Political advertising or an electioneering communication that contains a false statement of material fact about a candidate for public office. However, this subsection (1)(a) does not apply to statements made by a candidate or the candidate's agent about the candidate himself or herself.

"Actual malice" means "to act with knowledge of falsity or with reckless disregard as to truth or falsity." RCW 42.17.020(1). A violation of RCW 42.17.530(1)(a) must be proven by clear and convincing evidence. RCW 42.17.530(2).

¶ 6 The PDC held a hearing regarding Senator Sheldon's complaint on July 29, 2003, months after Senator Sheldon handily defeated Ms. Rickert in the 2002 election. See Rickert v. Pub. Disclosure Comm'n, 129 Wash.App. 450, 453, 119 P.3d 379 (2005) (noting that "Senator Sheldon was reelected . . . by approximately 79 percent of the vote"). The PDC found that Ms. Rickert's brochure contained two false statements: "(a) Senator Sheldon voted to close the Mission Creek Youth Camp, and (b) . . . Mission Creek was a facility for the developmentally challenged." AR at 410 (Final Order, Conclusion of Law 7).⁴ Additionally, the PDC concluded that the statements were material, that Ms. Rickert sponsored the brochure with actual malice, and that her violation of RCW 42.17.530(1)(a) had been established by clear and convincing evidence. AR at 411 (Final Order, Conclusion of Law 10). The PDC imposed a $1,000 penalty on Ms. Rickert. AR at 411 (Final Order).

¶ 7 The superior court affirmed the PDC's final order. Ms. Rickert then appealed to the Court of Appeals, which reversed. The Court of Appeals held that RCW 42.17.530(1)(a) violates the First Amendment because it cannot survive strict scrutiny. Rickert, 129 Wash.App. 450, 119 P.3d 379. We agree and, accordingly, affirm.

ANALYSIS

A. RCW 42.17.530(1)(a) extends to protected speech, hence, strict scrutiny applies

¶ 8 "`[T]he First Amendment `has its fullest and most urgent application' to speech uttered during a campaign for political office.'" Burson v. Freeman, 504 U.S. 191, 196, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992) (plurality opinion) (quoting Eu v. S.F. County Democratic Cent. Comm., 489 U.S. 214, 223, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989)). Such political speech is "`at the core of our First Amendment freedoms.'" Republican Party v. White, 536 U.S. 765, 774, 122 S.Ct. 2528, 153 L.Ed.2d 694 (2002) (quoting Republican Party v. Kelly, 247 F.3d 854, 861, 863 (8th Cir.2001)). Accordingly, any statute that purports to regulate such speech based on its content is subject to strict scrutiny. Id.; Burson, 504 U.S. at 198, 112 S.Ct. 1846 (state's content-based regulation of political speech subject to strict scrutiny); 119 Vote No! Comm., 135 Wash.2d at 628, 957 P.2d 691; Rickert, 129 Wash.App. at 452, 119 P.3d 379.<sup>5</sup> Under this standard, the State must demonstrate that RCW 42.17.530(1)(a) "`is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.'" Burson, 504 U.S. at 198, 112 S.Ct. 1846 (quoting Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983)).

¶ 9 The text of RCW 42.17.530(1)(a) suggests that the legislature may have intended to limit the scope of its prohibition to the unprotected category of political defamation speech identified by the United States Supreme Court in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). However, as correctly noted by the Court of Appeals, "[U]nder New York Times, only defamatory statements . . . are not constitutionally protected speech." Rickert, 129 Wash.App. at 461, 119 P.3d 379. Because RCW 42.17.530(1)(a) does not require proof of the defamatory nature of the statements it prohibits, its reach is not limited to the very narrow category of unprotected speech identified in New York Times and its progeny. Thus, RCW 42.17.530(1)(a) extends to protected political speech and strict scrutiny must apply.

B. RCW 42.17.530(1)(a) cannot survive strict scrutiny

1. Protecting candidates is not a compelling government interest here, and RCW 42.17.530(1)(a) is not narrowly tailored to further that interest

¶ 10 The plain language of RCW 42.17.530(1)(a) provides that the law's purpose is "to provide protection for candidates for public office." LAWS of 1999, ch. 304, § 1(3). Legislators apparently concluded this was a sufficient state interest to support the statute based on the concurring opinion of Justice Madsen in 119 Vote No! Committee, 135 Wash.2d at 635-36, 957 P.2d 691 (Madsen, J., concurring). Laws of 1999, ch. 304, § 1. The present case provides an opportunity to reiterate the fundamental principles enunciated by the lead opinion in 119 Vote No! Committee, 135 Wash.2d 618, 957 P.2d 691, and to clarify that neither statements about political issues nor those about candidates may be censored by the government under a scheme like RCW 42.17.530(1)(a).

¶ 11 In the case at bar, as in 119 Vote No! Committee, the State claims that "it may prohibit false statements of fact contained in political advertisements." 135 Wash.2d at 624, 957 P.2d 691. However, "[t]his claim presupposes the State possesses an independent right to determine truth and falsity in political debate," a proposition fundamentally at odds with the principles embodied in the First Amendment. Id. at 624-25, 957 P.2d 691. Moreover, it 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.⁶ As aptly summarized by the Supreme Court, quoted by the lead opinion in 119 Vote No! Committee, "`[E]very person must be his own watchman for truth, because the forefathers did not trust any government...