Court Overturns Law Regulating What Candidates Can Say

News Release: 
Friday, November 20, 2009

The Washington Court of Appeals today overturned a law that regulates the content of political candidates’ statements, saying that it violates their right to free speech and does not ensure the honesty of elections. The ruling came in a case in which the American Civil Liberties Union represented a candidate for state legislature whom the government sought to fine for statements she made about her opponent’s voting record.

“In our democracy, candidates are free to make very strong statements criticizing their opponents or the government.  The government itself should not be in the business of vetting the truth and falsity of their political speech,” said Kathleen Taylor, Executive Director of the ACLU of Washington.

The ACLU represented Marilou Rickert in her challenge of a fine imposed after the 2002 election for the Legislature. Rickert was a candidate for the Green Party, who issued a flyer comparing her voting record and positions with those of incumbent Democrat Tim Sheldon of the 35th Legislative District. Sheldon won re-election with 79 percent of the vote.  After the election, Sheldon filed a formal complaint with the Public Disclosure Commission claiming that Rickert lied about him in the flyer.  The Commission fined Rickert $1,000 for violating the state’s law regulating political advertising.

The Appeals Court found that the law is too broad because it interferes with constitutionally protected speech and does not advance the state’s interest in promoting integrity and honesty in the elections process.  Unlike a defamation action – where harm must be proven – the overturned law allows the government to pursue a claim against a candidate even when no harm has been shown.  In Rickert’s campaign, her opponent in fact showed no harm, as he won by an overwhelming margin.  The court pointed out that the law is flawed because it is not limited to speech made during a campaign.  The court also noted that the law excludes statements candidates make about themselves, which are equally likely to be erroneous.  The court affirmed a “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” 

Rickert, who denies having lied about Sheldon, is gratified by the decision. “The court has made clear that political candidates may not be intimidated into avoiding criticism of the government.  Candidates no longer have to fear that a government tribunal may decide after the fact that a candidate was mistaken in something he or she said or wrote,” said Rickert.

Cooperating attorney Venkat Balasubramani handled the case for the ACLU.

The case is the second successful ACLU challenge of the state’s attempt to regulate the content of campaign statements. In 1998 the Washington Supreme Court overturned an earlier version of the law. In that case, the government tried to penalize the 119 Vote No! Committee for statements against a Death with Dignity initiative that failed to pass.

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