STATE SUPREME COURT DECLARES IT IS OKAY TO LIE, read the headlines. Similar headlines appeared across the state.  It was a great day for the talk show hosts.  Each morning they are faced with the daunting task of culling the news for articles they can use to whip their listeners into enough indignation and outrage to pick up the phone.   Few in the electronic media bother to read our opinions although they are posted on our website.  It is enough for them to read a few sentences from a newspaper article and spice it up with some provocative catch phases like, what is happening to the moral fabric of America and then watch those phone lines light up. But that is all okay because radio is, after all, entertainment.  Talk radio is a unique kind of theater; I enjoy it myself sometimes.

I was speaking around the state at the time.  More than once a question came out of the audience, Do you really believe it is okay to lie?  The question was always asked in a good natured way.  And the question always gave me an opportunity to explain how the court works.

The case was Rickert v. Public Disclosure Commission, 161 Wn.2d 843, 168 P.3d 826 (2007).  In 2002, Ms. Marilou 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.  The brochure stated that Senator Sheldon voted to close a facility for the developmentally challenged in his district.  The Public Disclosure Commission found that the statement was false and that Ms. Rickert had sponsored the brochure with actual malice (to act with knowledge of falsity or with reckless disregard as to truth or falsity) and imposed a $1,000 sanction.   Incidentally, Senator Shelton had no difficulty winning reelection with 79 percent of the vote.

Ms. Rickert appealed arguing that her United States Constitution First Amendments rights had been violated.  She claimed the statute upon which the Public Disclosure Commission acted was unconstitutional government censorship and had a chilling effect of free speech.  To decide the case, we had to construe the United States Constitution.

Another question that I am frequently asked is whether I am a strict constructionist or whether I believe the constitution lives and breaths and changes with time.  The answer is neither.  The constitution is a document of words and the words dont change with time; it is not the courts job to change the constitution to keep up with the changes of time.  Strict construction is often equated with states rights; like George Wallace standing in front of federal officers and trying to prevent the integration of schools in Alabama.  George Wallace claimed to be a strict constructionist.  I’m not a strict constructionist.  I am an origninalist.  When faced with a thorny constitutional question I like to ask the founders how they would answer the question.  This does take an exercise of the imagination.  When the constitution was drafted, there was no talk radio.  People and news traveled at about 2 miles per hour over land; not 186,000 miles per second over the airwaves.  But I am sure that the founders would have given radio First Amendment protections.  I particularly like to consult James Madison.  He drafted the Virginia Plan which became the framework of the final constitution.  He took careful notes at the constitutional convention in Philadelphia which were published after his death.  Madison also drafted the Bill of Rights; the first ten amendments to the constitution.  I find Benjamin Franklin the most interesting.  Although he was not at the constitutional convention, Thomas Jefferson was the most passionate of the founders.  But Madison is my main man on what the United States Constitution means.  Now the truth is that when interpreting the United States Constitution, state courts are bound by the interpretations of the United States Supreme Court and federal courts.  There are more than 200 years of precedents, opinions by federal courts interpreting the Constitution, so we dont get much opportunity to do fresh interpretations of that Constitution.

Still, I asked myself, how would James Madison answer the question raised by Ms. Rickert?  I have read his writings and books about him.  I am convinced he would say something like:

My word, we can never trust the government to regulate political speech in any fashion.  Remember, I had to publish my Broadsides under an assumed name for fear of being arrested and tried for sedition.  Once the government is given the power to decide what is truthful, what is false, what a statement of opinion is or what a statement of fact is, it is just a matter of time before that power will be abused.  The body politic must be the final arbiter of what is true and what is false.

But consulting with Mr. Madison was not the end of my work.  Remember I said that there where more than 200 years of precedents.  Those precedents tell us that free speech is not absolute and that speech can be limited, if there is a legitimate government interest for doing so and the statute is narrowly tailored to accomplish that purpose.  Protecting the integrity of the election process is a legitimate government purpose.  The actual malice test is the same test that newspapers and other media have had to live with for 45 years when reporting about public figures. The actual malice standard has passed constitutional muster many times and has withstood the test of time.  It seems to me it has encouraged responsible reporting without unnecessarily infringing on free speech.  In the days of James Madison, the only media was written.  One can read and re-read and think on something written. James Madison wasn’t confronted with electronic media by which people are bombarded by fleeting subliminal negative campaign messages.

Most of the cases we hear are not easy.  Ms. Rickerts case was a difficult one for me.  After some deliberation, I joined the concurrence written by Justice Madsen concluding that the statute was constitutional but, on the facts of the case before us, Ms. Rickert didn’t violate it.  I did not say it was okay to lie.  However, those who signed the majority opinion written by Justice James Johnson did so on the solid principle that the free speech may trump the States right to regulate.