Seattle, WA

OLYMPIA — A sharply divided state Supreme Court has ruled that a law that bars political candidates from deliberately making false statements about their opponents violates the First Amendment right of free speech.

In a 5-4 ruling, the high court affirmed a state Court of Appeals ruling that overturned the law. The measure was enacted by the Legislature in 1999, a year after a similar ban on false statements involving initiatives and other ballot measures was thrown out by the state Supreme Court.

I sent a link to this article to my partner yesterday, which led to quite a discussion (albeit mostly on his part). I’m lucky to have such a smart partner because it’s easy to get angry about an issue like this without fully thinking it through. What follows is the gist of the conversation.

While on the face of it, it may seem as though the Supreme Court has indeed given politicians free reign to lie, to say so would be a gross oversimplification of the issues at hand. In fact it just might be an example of where the constitution doesn’t always agree, in letter of law, with what we think is a decent and upstanding position.

Do we really want to put the government in the position of verifying everything candidates say? They already can’t properly administer health care or social security. And if a candidate, once elected, is found to have made a concrete, verifiably false statement about his/her opponent, do we strip them of their office? If so, do we put the opponent in his/her place? How egregious of a lie would it have to be to go to that trouble? Any lie at all? A big lie? A small lie? A tiny white lie? Do we have to show that the lie was made knowingly? If so how?

It makes me sick to my stomach that any individual should take advantage of the legal system to absolve themselves of mud-slinging, filthy tactics, or any other manner of what I, and what I consider decent people would consider to be, underhanded tactics. And yes, if that is what we truly desired, we could probably (if enough citizens would get off their asses), make it the government’s job to verify everything that everyone ever says, or even just our candidates.

In my heart of hearts, I might even believe that that would be a worthy goal. But how would we implement it? I’m not defending the tenants of the law or the implementation of it as listed in the article by any means. I just think that regardless of what the best and most earnest ideals for a government of the people might be, they can only really do so much. There is much incumbent upon every citizen to seek out truth - to evaluate historical perspectives and speeches by candidates. To seek out information about voting records. To do more than watch commercials. To, by their participation and voting, and god forbid initiatives, ensure a legal system by which such information is readily available to use to make such decisions. And then, for good or ill, for each to decide for him/herself.

Do most people, including me, do this? Ever? Probably not.

I’m no legal scholar, but to my understanding, there theoretically exists within our legal system, the ability to “recall” any elected official, for whatever reason, should we as the people find him/her to have violated our trust. How often have any of us felt strongly enough to do something along those lines? To hear any of us talk, any one of us certainly has felt strongly enough about one or another elected official to support such an action. Yet I can count on less than one hand’s worth of fingers my knowledge of any such actions.

In the concept of a government of the people, by the people, and for the people, sad though I am to say, the most important missing link these days seems to be the “by” part.

If you lie and it’s okay by law, will you still be on the bad kids list for Santa?

Quite possibly. The law doesn’t guarantee ethics, or morals.

Do I believe that ideally that would include truth? Sure. In theory, within our system, we could, if we so chose, demand that the laws be structured to enforce that. But it’s easy to write a law that says “you must be truthful”. Writing laws, and creating governing bodies, establishing standards for, and collecting taxes to support such an infrastructure? Would we really vote for that? Maybe, maybe not. Again, the Utopian optimist in me says “shouldn’t we strive for that?” The realist in me says “It is less expensive, and frankly, much more effective, to have an informed, intelligent, educated, compassionate and participatory populace, researching, discussing, deciding, and voting on this stuff.

But in the end, a true utopia doesn’t need government. And as far as I can see, in the history of what we consider to be largish societies, that’s never worked out.

So why institute this law in the first place?

Why indeed. The decision of the court seems to say just that, in their ruling of it as unconstitutional

The problem with a Utopian society is that it can only succeed without people.

Well said. To paraphrase Dante, “Hell is other people”.

Again, I’m no scholar, but as I remember it, the constitution says “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The blogging site, Livejournal has, over time, and particularly recently, brought up changes to their policies which some have decried as “violations of free speech”. Would I, personally, find it offensive and draconian some of their policies? Absolutely. Would I judge that Livejournal, as a private company, and one which membership in is completely voluntary, has violated any constitutional rights? Probably not. This argument highlights the difference between what people want/think the First Amendment to be/is and what is actually says. Though the First Amendment says that Congress shall make no law regarding free speech it makes no provision saying that private entities or companies have to permit free speech. And though I might be irritated by some actions by Livejournal and similar private companies, they are not MAKING LAWS. Your participation in the resources they create is voluntary and is not related to any government laws.

The majority opinion in this case is characterized as, “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,” Justice James Johnson wrote for the majority, joined by Justices Charles Johnson, Richard Sanders and Susan Owens.”

So they aren’t exactly saying you can lie legally, they are just saying they cannot police it.

Exactly. I think they are saying that, it goes against the constitution, for a government entity to decide that THEY will decide, even based on something that is seemingly as straightforward as whether something is a lie or not, what speech is protected and which is not. If we leave it up to the government to decide what is protected speech, who decides if how they are doing that is “right”. Do I think we should tolerate politicians or elected officials lying? Absolutely not. Should we rely on the government to police that? In general principal, and also given my general assessment of their ability to do almost anything else, absolutely not.

Nobody ever said, “Will you please pass a law so I will stop doing something I don’t want to do?’ They always say, ‘Please pass a law so that THEY will stop doing something I don’t want them to do.”

~Manuel O’Kelly in Robert A. Heinlein’s “The Moon is a Harsh Mistress”

Perhaps politicians aren’t lying at all. Perhaps they are just practicing misdirection.

Seattle, Olympia, politics, Law, lies, Supreme Court, First Amendment, Free Speech