Protecting lies ensures that the truth may be told

Friday, July 24, 1998

If Richard Sanders didn’t know it before, he knows it now — defending the First Amendment usually involves protecting shameful speech and shameless speakers.

The politically correct rarely need First Amendment protection; the warm embrace of the majority nurtures and encourages their speech. The vitality of the First Amendment instead is tested by pornographers, flag-burners and unscrupulous reporters, while the depth of free-speech rights usually is probed by racists, agitators and calculating liars.

It was the calculating liars who recently found themselves seeking Sanders’ protection. Sanders and his colleagues on the Washington state Supreme Court were considering the constitutionality of a state statute that imposed criminal penalties on people who made knowingly or recklessly false statements in political advertising.

A slim majority of the court, led by Sanders, struck down the law, holding that it unconstitutionally chilled protected speech. The deep division on the court, however, prompted the state’s attorney general to ask the court to reconsider its ruling.

The Washington court has not yet ruled on the attorney general’s request, but fundamental First Amendment principles require that the court stand behind its earlier decision.

The tenet at the core of First Amendment jurisprudence is that governmental regulation of “bad” speech will not be permitted if the regulation will at the same time discourage “good” speech. To survive constitutional scrutiny, a law designed to punish speech therefore must be justified by a “compelling” state interest and must be drafted with nearly pinpoint precision so that the threat of punishment does not frighten innocent speakers into steering clear of particular subjects or statements.

As a result, First Amendment law tolerates a significant amount of false, distasteful and mean-spirited speech. Just as the criminal justice system would rather free 100 guilty men than convict even one innocent one, the First Amendment would rather endure a cacophonous marketplace of ideas than create a tranquil one. An essential aspect of this philosophy is the belief that truth is more likely to be divined through a multitude of tongues than through governmental selection of speech or speakers. “To many this is, and always will be, folly,” Judge Learned Hand wrote in 1943, “but we have staked upon it our all.”

The ultimate error of the justices on the Washington court who disagreed with Justice Sanders was their failure to ask whether the statute would inadvertently chill other speech. Justice Philip Talmadge argued vigorously and persuasively that the false speech targeted by the law was not entitled to First Amendment protection. He inexplicably stopped his analysis there, however, without responding to Sanders’ point that the criminalization of false political speech, even knowingly false political speech, would chill both true political speech and protected expressions of opinion.

As much as Talmadge (and perhaps all of us) would like to think that the truth or falsity of political advertising can be easily and conclusively determined, our country’s experiences suggest otherwise. Would it violate the statute for a third-party candidate to claim that the two established parties have concealed evidence of conspiracies in the John F. Kennedy and Martin Luther King assassinations? Would it be illegal for a Democrat to suggest that President Reagan was suffering from the early stages of Alzheimer’s disease during his second term? Would it be reckless and therefore unlawful to run an ad stating that President Clinton and Monica Lewinsky had a sexual relationship?

Unfortunately, these and many other political issues and statements do not lend themselves to easy determinations of truth and falsity. Speakers concerned about potential criminal charges therefore would likely avoid these issues, especially if their political opponents controlled the local prosecutor’s office. A second problem involves the distinction between fact and opinion, which has plagued defamation law for a quarter of a century. A statute that subjected speakers to criminal liability for false statements of fact undoubtedly would discourage many speakers from offering their opinions.

In arguing to uphold the law, Talmadge wrote that the “statute speaks only to one person: the calculating liar, who with clear mind and steadfast, deliberate purpose, coldly composes and diligently distributes knowing lies to effect a desired political result.” In a perfect world, Talmadge would be right, and statutes like the Washington law would purify our political debate without chilling important expression.

Until that perfect world arrives, however, we must continue to tolerate the calculating liars, knowing that their freedom is the best guarantee of our own.

Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Beckman Badger & Lee and a legal correspondent for the First Amendment Center.