The 2008 Presidential Elections are creeping up quickly and the outcome of Rickert v. Washington will have a major effect on the outcome of the election. As of last Thursday (10/04/07) the U.S. Supreme Court decided that it is unconstitutional to punish political candidates for lying about each other. Previously, many states enforced laws that prevented falsehood in the marketplace of ideas, but now politicians are "given the green light to lie about their opponents by the Washington Supreme Court."(1) Potential candidates like Hillary Clinton or John McCain are free to say anything they think the public should know.
Rickert v. Washington began in 2002 with two opposing politicians: Marilou Rickert and Tim Sheldon. Rickert, a Green Party member, was running for the State Senate and Tim Sheldon, a democrat, was the challenging incumbent. In order to promote herself, Rickert approved a campaign brochure that stated Sheldon had “voted to close a facility for the developmentally challenged," and after his reelection Sheldon went to the state’s Public Disclosure Commission.(2)
There were State laws that prevented Rickert from sending out such brochures, but this case changed those laws. Taking a libertarian shift, the Courts decided that these laws are unconstitutional; now Marilou Rickert and all other political candidates are allowed to lie about each other, as long as neither actual malice nor defamation is present. In case you didn't know actual malice is when the defendant, in fact, has serious doubts to the truth, and defamation is false or unjustified injury of the good reputation of another and the plaintiff must prove that their reputation has been damaged.(1)
This case almost mirrors New York Times Co. v Sullivan, so, considering that case's outcome, I was surprised that these laws even existed. Dissenting Justice Barbara Madsen fears that the recent ruling is an "invitation to lie,"(3) But in order to decipher truth it is the public's job to sift through ALL of the ideas in the marketplace; it is not the government's job to do that for us. Candidates should be afforded their right to the First Amendment whether their statments are true or false; the goal is that "debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."(4) If we only protect "true" speech, then we are really only protecting acceptable speech, which defeats the point of even having the First Amendment. As Madison states, "Some degree of abuse if inseparable from the proper used of everything."(4) The point is not to have "true" speech, it is to have free speech, so as rational citizens, we should be allowed to arrive at our own idea of truth. To protect freedom is to protect falsehood.
Besides, how do we know what the candidates are saying is false? The government should not be asking the speaker to defend themselves, but rather we should be asking the government why they want to restrict the speech. The government is our servant and if we allow them to place that burden on the speaker, we back freedom into a corner.
Also, falsehood is a means of producing the truth. John Stuart Mill wrote a book called Utilitarianism, and in this excerpt I think he explains this concept the best:
"A test of right and wrong must be the means, one would think, of ascertaining what is right or wrong, and not a consequence of having already ascertained it."(5)
If we allow the government to "ascertain" the truth for us, we, as citizens, will be stripped of our opportunity to discover truth for ourselves. Justice James Johnson supports Mill's opinion by stating that, “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.”(1) Democracy is based on the idea that people are rational and are capable of defining their own truth, and if we doubt the people we destroy democracy.
So when the election comes around, keep in mind that although America has its faults, cases like Rickert v Washington show that democracy and freedom are still intact. In order to obtain freedom we must take risks and we must have faith, for "freedom is not for the faint of heart."(6)
Sources:
1.) http://www.nytimes.com/2007/10/07/us/07lying.html
2.) http://www.courts.wa.gov/opinions/pdf/777691.opn.pdf
3.)http://www.courts.wa.gov/opinions/pdf/777691.no1.pdf
4.)http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=376&invol=254
5.)http://www.utilitarianism.com/mill1.html
6.) Helle, Steven. JOUR 199. University of Illinois. Fall 2007.
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2 comments:
I must admit that when first reading your blog my initial reaction was laughter.
I find it comical that citizens would, even for a second, consider electing a leader who would blatantly lie about the actions of another candidate. It does not take much intellect to realize that if this candidate is lying to the public before they are even elected, chances are they will lie to the public in the future about much more important issues. Furthermore, if a candidate is so insecure about their own campaign that they have to lie about someone else’s to make themselves look better, that should be evidence enough that that particular individual would not make a good leader.
Assuming that the Court is not completely ignorant, they must have realized this too. The Court knows that the American people are not stupid, and they know that citizens would not knowingly elect a liar into office. This theory is reflected in the fact that in the case of Rickert v. Washington, Washington won the election despite the lies that Washington presented against him (1). Lying does not exactly promote trust and dependence, and Americans want leaders whom they can rely on. Current presidential candidates should take this historical fact into consideration when contemplating taking advantage of the new “freedom” that has been presented to them. However, this is not the main issue that I would like to address in my response.
It is true that falsity is protected by the First Amendment. It is also true that presidential candidates are now allowed to lie about their opponents. However, this new law does not protect candidates from libel, and therefore their speech regarding their opponents will still be regulated to some extent.
Libel is defined by four different traits:
1. A false and defamatory statement concerning another
2. The unprivileged publication of the statement to a third party
3. If the defamatory matter is of public concern, fault amounting at least to negligence on the part of the publisher
4. Damage to the plaintiff (2)
This means that while false statements are protected by the First Amendment, statements that are defamatory to another individual are not. For this reason, it is not really true that candidates now “…are free to say anything they think the public should know” (3). Candidates still cannot make up something that could severely damage the image of their opponent. In a way this restriction cripples the new law in that the lies that a candidate are able to present against their competitor won’t really cause enough damage to change the outcome of the election, and therefore really aren’t necessary in the first place.
Sources:
(1) - http://money.aol.com/news/articles/_a/wa-high-court-rules-campaign-lies-are/n20071004182209990032
(2) http://www.expertlaw.com/library/personal_injury/defamation.html
(3) http://kjboyle2.blogspot.com/
When I was reading your blog, I began to wonder if maybe Americans should start using ability to lie as a criteria for picking a candidate. After all, the bluff is an important part of negotiations and diplomacy.
Or, maybe that's a bad idea.
Having little trust for politicians, I definitely like the result of Rickert v. Washington. Now our candidates have another opportunity to show their true colors. But still, with thousands of bloggers and controversy-hungry media outlets dogging campaign trails, I really doubt that any candidate will be lying any more than usual. There are too many people looking for mistakes.
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