Posted by Eugene Volokh:
Restriction Recklessly/Knowingly False Statements About Political Candidates:
http://volokh.com/archives/archive_2007_09_30-2007_10_06.shtml#1191612788
The Washington Supreme Court has just struck down a state statute that
bars
political advertising or an electioneering communication that
contains a false statement of material fact [made with with
knowledge of falsity or with reckless disregard as to truth or
falsity] about a candidate for public office [except] statements
made by a candidate or the candidate's agent about the candidate
himself or herself.
The government, a majority of the court held, generally lacks the
power to restrict even knowingly or recklessly false statements,
except in defamation lawsuits brought by the defamed person: The
plurality took the view that "only defamatory statements ... are not
constitutionally protected speech"; the concurrence seemed to agree,
reasoning that the statute "is unconstitutionally overbroad" because
it "prohibits nondefamatory speech in addition to defamatory speech."
(In this, the Court reaffirmed and extended an earlier decision,
Public Disclosure Commission v. 119 Vote No! Committee, 957 P.2d 691
(Wash. 1998).)
1. False Statements of Fact Exception or Libel Exception? The trouble
is that the Supreme Court's tolerance for restrictions on knowingly or
recklessly false statements of fact extends considerably beyond libel
law:
1. The Court has expressly upheld statutes banning fraud, including
fraudulent solicitation of charitable donations (though
nonfraudulent solicitation of charitable donations is generally
treated as fully protected speech). [1]Illinois ex rel. Madigan v.
Telemarketing Associates, Inc. (2003).
2. The Court has expressly upheld the false light tort, which
compensates people for the emotional injury of having false or
misleading statements said about them that "would be highly
offensive to a reasonable person," even when the statements don�t
damage the subject�s reputation. [2]Time, Inc. v. Hill (1967).
3. The Court has suggested, in [3]Brown v. Hartlage, that knowingly
or recklessly false statements in election campaigns are generally
punishable. The Court struck down the statute involved in that
case on the grounds that it didn't have a knowledge/recklessness
requirement, but it reasoned that "There has been no showing in
this case that petitioner made the disputed statement other than
in good faith and without knowledge of its falsity, or that he
made the statement with reckless disregard as to whether it was
false or not. Moreover, petitioner retracted the statement
promptly after discovering that it might have been false. Under
these circumstances, nullifying petitioner's election victory was
inconsistent with the atmosphere of robust political debate
protected by the First Amendment."
4. Lower courts have uncontroversially upheld criminal punishment of
perjury and out-of-court lies to government officials (for
instance, under 18 U.S.C. § 1001). See, e.g., Clipper Exxpress v.
Rocky Mountain Motor Tariff Bureau, Inc., 690 F.2d 1240 (9th
Cir.1982).
5. Lower courts have generally upheld trade libel law, which imposes
liability for (at least) lies about people's and corporations'
products, not just about the people themselves. Cf. Bose Corp. v.
Consumers Union, 466 U.S. 485 (1984) (assuming, without deciding,
that trade libel should be treated like normal libel).
6. Only in one situation has the Court strongly suggested that even
some recklessly or knowingly false statements are constitutionally
protected: [4]New York Times v. Sullivan (1964) and [5]Rosenblatt
v. Baer (1966) strongly suggest that the law can't punish even
deliberate lies about the government (the traditional definition
of "seditious libel"), so long as no particular person is
mentioned.
7. Finally, the somewhat opaque [6]R.A.V. v. City of St. Paul holds
that the government often may not selective punish some false
statements but not others; but there are several substantial
exceptions to this doctrine -- "[w]hen the basis for the content
discrimination [within the unprotected category] consists entirely
of the very reason the entire class of speech at issue is
proscribable," when "the subclass happens to be associated with
particular 'secondary effects' of the speech [unconnected to the
persuasive or offensive communicative impact of the speech], so
that the regulation is �justified without reference to the content
of the ... speech,'" when "a particular content-based subcategory
of a proscribable class of speech can be swept up incidentally
within the reach of a statute directed at conduct rather than
speech," and when "the nature of the content discrimination is
such that there is no realistic possibility that official
suppression of ideas is afoot."
So the unresolved First Amendment question is: Is there a general
First Amendment exception for knowingly or recklessly false statements
of fact, with a few exception-to-exception zones of categorical
protection (such as false statements about the government, or perhaps
false statements about history or science)? Or is there a set of
narrower First Amendment exceptions for defamation (said with the
proper mental state), speech that puts someone in a false light,
fraud, perjury, false statements to government officials, trade libel,
and the like, with a broad zone of protection even for false speech
outside these narrow exceptions?
My reading of the cases is that they rest on the theory that "there is
no constitutional value in false statements of fact" ([7]Gertz v.
Robert Welch, Inc. (1974)) and that such statements may be punished at
least when said with knowledge that they're false or with reckless
disregard of falsehood. This supports the
general-First-Amendment-exception theory. On the other hand, the Court
has never made that explicit.
Moreover, even if only certain categories of false statements are
punishable, the Court's upholding the false light tort (in Time, Inc.
v. Hill and [8]Cantrell v. Forest City Publishing, Inc. (1974))
suggests that knowingly or recklessly false statements -- including
nondefamatory ones -- about particular people are indeed punishable.
The plurality distinguishes false light in footnote 7 by reasoning
that "The Supreme Court has indicated that false statements about
private individuals made with actual malice, but which are not
defamatory, may not be protected speech" but that "the Court has not
held that false statements about public figures made with actual
malice, but which are not defamatory, are devoid of all constitutional
protection." Yet that doesn't seem consistent with Hill and Cantrell,
which didn't turn on whether the plaintiff was a public or private
figure. In fact, Cantrell noted that
[T]his case presents no occasion to consider whether a State may
constitutionally apply a more relaxed standard of liability for a
publisher or broadcaster of false statements injurious to a private
individual under a false-light theory of invasion of privacy, or
whether the constitutional standard announced in Time, Inc. v. Hill
applies to all false-light cases.
Both these options seem to acknowledge that liability for falsehoods
said with "actual malice" would be available in "all false-light
cases," whether brought by private figures or public figures -- the
question is whether there should be an extra zone of liability for
negligent falsehoods when the plaintiff is a private person. It thus
seems to me that the dissent is right in concluding that false
statements about particular candidates can be punishable even if they
aren't defamatory.
2. Is the Law Too Narrow? The plurality also suggested that the law
was unconstitutional because it was too narrow, since it banned only
knowingly/recklessly false statements about other political
candidates, and not knowingly/recklessly false statements about any
candidate (including yourself), or for that matter
knowingly/recklessly false statement about any other person.
But I think the dissent is basically right on this, too: If the speech
falls within an unprotected category, then even a limited restriction
is constitutional if it complies with R.A.V. The premise for the false
statements exception, especially as applied to false light actions, is
a combination of the theory that (1) false factual assertions
undermine the search for truth in public discussion, and (2) false
statements about a particular person especially hurt the subject. This
suggests that in the Washington statute, the "basis for the content
discrimination [within the unprotected category] consists entirely of
the very reason [or, here, reasons] the entire class of speech at
issue is proscribable": The law is punishing statements that are
especially dangerous to public discussion (since they are about
elections, where sound decisionmaking is especially important, and a
decision must be made by the election day, so falsehoods may therefore
be especially damaging), and that are especially likely to hurt a
particular person (which explains the exception for false statements
about yourself). I'm not wild about the exception for
knowingly/recklessly false statements about one's own qualifications,
but it doesn't seem to make the law invalid.
3. Is It Improper To Have the Law Be Enorced by an Administrative
Agency? Here, unlike in a libel lawsuit, or even in a criminal libel
prosecution (which the Court seemed to uphold in [9]Garrison v.
Louisiana (1964), when such prosecutions are limited to knowingly or
recklessly false statements), the finding of falsehood is made by an
administrative agency -- the Public Disclosure Commission -- and not
by a judge or jury. And I agree with the plurality that such findings
can't stand unless there is independent review by a court of "whether
whether there is clear and convincing evidence the respondent uttered
the statements with actual malice"; [10]many cases so hold. But I tend
to think that the dissent correctly concludes that the remedy for that
is to mandate independent review as a constitutional matter, not to
strike down the statute altogether.
* * *
So my tentative view is that the dissent is correct, and that the law
should have been upheld, even as applied to nondefamatory speech. My
sense is also that this case is a good candidate for Supreme Court
review, since there's a pretty square split on this general question
at least between the Washington Supreme Court and the U.S. Court of
Appeals for the Sixth Circuit. On the other hand, my sense is that
there isn't much other caselaw on this from other circuit courts and
other state supreme courts (there is some from intermediate courts of
appeals, but they generally don't count much when the Court is
measuring the magnitude of a split), so maybe the Court would decide
to let the issue percolate in the lower courts for some more years.
Note also that Washington didn't petition the Supreme Court for
certiorari in the earlier case on this subject (119 Vote No! (1998));
perhaps the state again won't ask the Court for review here.
References
1.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=538&invol=600
2.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=385&invol=374
3. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=456&invol=45
4.
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=376&invol=254
5. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=383&invol=75
6.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=505&invol=377
7.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=418&invol=323
8.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=419&invol=245
9. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=379&invol=64
10. http://www.law.ucla.edu/volokh/copyrev.htm#TOC4
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