Bearing false witness.

• Author: Larson, Carlton F.W.
• Position: Washington State statute prohibiting political ads with false statements of material fact found to violate First Amendment - Case Note

Washington ex rel. Public Disclosure Commission v. 119 Vote No! Committee, 957 P.2d 691 (Wash. 1998).

In 1992, the Washington Attorney General charged a political action committee with violating a Washington statute(1) that prohibited sponsoring, with actual malice, "political advertising that contains a false statement of material fact."(2) In Washington ex rel. Public Disclosure Commission v. 119 Vote No! Committee, the Supreme Court of Washington held that the statute violates the First Amendment when applied in the context of an initiative campaign.(3) The court found that the statute infringed on a form of expression that lies at the heart of the First Amendment: political speech.(4) Subjecting the statute to "exacting scrutiny," the court concluded that the state's "claimed compelling interest to shield the public from falsehoods during a political campaign is patronizing and paternalistic.... 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."(5)

At least nineteen states have enacted statutes prohibiting knowingly making false statements in political advertising.(6) Although some courts have invalidated portions of these statutes,(7) no court has previously found a narrow prohibition of malicious false statements to be facially unconstitutional.(8) Several courts have found that challenges to the statutes are governed by Garrison v. Louisiana,(9) in which Justice Brennan wrote for the United States Supreme Court:

[T]he use of the known lie as a tool is at once at odds with the premises of democratic government and with the orderly manner in which economic, social, or political change is to be effected. Calculated falsehood falls into that class of utterances which "are no essential part of any exposition of ideas, are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."(10) The Washington Supreme Court distinguished Garrison and a long line of similar cases on the grounds that those cases involved private reputational interests that were not present in the context of an initiative campaign.(11)

This Case Note argues that although the Washington court was correct to note a distinction between these two types of campaigns, it incorrectly analyzed the interests at stake when, in initiative campaigns, citizens act as legislators. In particular, the court overlooked the compelling state interest in ensuring the accuracy of information that is transmitted to legislative bodies.(12)

I

American law long has recognized that accurate information is an essential predicate to the rational exercise of the lawmaking function. Federal and state decisions have consistently upheld the extensive investigatory powers of legislative bodies on precisely that basis.(13) In the leading case of McGrain v. Daugherty,(14) the United States Supreme Court noted that such powers had been seen as essential corollaries of the legislative power in the British Parliament and in the colonial legislatures.(15) The Court concluded:

A legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change; and where the legislative body does not itself possess the requisite information--which not infrequently is true--recourse must be had to others who possess it.... [S]ome means of compulsion are essential to obtain what is needed.(16) State courts have reached similar conclusions.(17) For example, in 1885, the New York Court of Appeals found that "[t]he power of obtaining information for the purposes of framing laws to meet supposed or apprehended evils is one which has, from time immemorial, been deemed necessary, and has been exercised by legislative bodies."(18) This power was "indispensable to intelligent and effectual legislation."(19) For the California Supreme Court in 1929, modernity had only heightened the importance of legislative factual investigation: "[I]n this age of new ventures and of large concerns.... the necessity of investigation of some sort must exist as an indispensable incident and auxiliary to the proper exercise of legislative power."(20)

Washington law similarly recognizes the importance of accurate information to the legislative process. The state legislature has the power to subpoena witnesses and papers.(21) Any person who fails to appear or who refuses to testify can be punished under the criminal law by fines of up to five hundred dollars and imprisonment for up to six months.(22) Such persons can also be punished under contempt provisions, which authorize a fine of up to one thousand dollars and imprisonment for the duration of the legislative session.(23) Persons convicted of perjury before the legislative body can be punished by as much as a twenty thousand dollar fine and up to ten years in prison.(24) The Washington Supreme Court has upheld these provisions, noting that "whenever the legislature has authority to enact laws, it has corresponding authority to make necessary investigations for the ascertainment of such facts as are a necessary predicate for the enactment of the law...."(25)

Implicit throughout this body of law is the idea that rational lawmaking requires accurate, relevant information about the conditions of the polity and the implications of proposed legislation.(26) Lawmakers, of course, may differ on the reasonableness of proposed legislative action, but decisions made in the absence of such information, or on the basis of false, misleading information, are irrational by definition. The threat of irrational decisions is sufficiently disturbing that courts have shown little hesitation in allowing...