Criminal Ban On Political Lies Held Unconstitutional

A new state legal precedent for libel in the political arena arrives just in time for the 2008 election. What does it mean for Colorado?A Washington State law that makes it a crime to lie about a political opponent with “actual malice” (a standard that includes reckless disregard for the truth) was held unconstitutional under the First Amendment yesterday in a 5-4 decision of the state’s supreme court.  Ohio upheld its virtually identical law in part in 2002.

Colorado has a statute that in the words of the Washington State Court is “virtually identical.”

Similar Laws

According to the Washington court, Colorado isn’t the only state with a similar law.  Five other states have “virtually identical” laws: Florida, Minnesota, Montana, Ohio and Oregon.

Notably, Washington’s law, but not Colorado’s, excludes lies a candidate makes about him or herself.

Six states have laws that make it a crime to “knowingly” make a false statement about a political opponent: Massachussetts, North Dakota, Tennessee, Utah, West Virginia and Wisconsin.  Two other states make it a crime if the statements are “defamatory” or “fighting words”: Mississippi and North Carolina.

Colorado’s law (Section 1-13-109, Colorado Revised Statutes) makes a knowing false statement a first degree misdemeanor, punishable by up to eighteen months in jail and a $5,000 fine (the minimum fine is $500). 

Colorado’s law makes a statement made with mere “actual malice” in the nature of reckless disregard of the truth or falsity of the statement a class two misdemeanor punishable by up to one year in jail and a $1,000 fine (the minimum fine is $250).


The backdrop against which the case plays out are the First Amendment limitations of libel and slander actions.  In 1964, the United States Supreme Court held in the case of New York Times v. Sullivan that a defamatory statement about a public figure or involving a matter of public concern could only be subject to legal sanction if it was a product of “actual malice” which means either knowledge that the statement was false, or reckless disregard for the truth or falsity of the statement.

Laws like those of Washington State, Ohio and Colorado adopted the “actual malice” intent standard of New York Times v. Sullivan.  But, while the U.S. Supreme Court in the New York Times case dealt with “defamatory” statements only, the Washington Law applies to any “false statement of material fact” about a candidate. (The Colorado law covers a “false statement designed to affect the vote on any issue submitted to the electors at any election or relating to any candidate for election to public office.”)

The U.S. Supreme Court has upheld legal sanctions for false, but not defamatory statements made with actual malice.  But, the case in which it did so, the 1967 case of Time, Inc. v. Hill, involved a private individual in a matter not of public concern, a class of statement afforded weaker First Amendment protection.

Defamatory statements differ from other kinds of false statements because they involve “wrongful injury to reputation”, and because the context in which they have usually been upheld, civil suits for money damages, involves a balancing of the interest in free speech with the interest of the person defamed in being compensated for injury to their reputation, a competing interest not present in a law criminalizing falsehoods in political debates.

The requirement that a defamatory statement harm someone’s reputation is similar to the requirement in a fraud suit that the people who were lied to actually believed the lie and relied upon it.

More fundamentally, the Washington State Court held: “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.” 

The Chief Justice of the Washington Supreme Court, who provided the 5th vote to strike down the law, agreed that the distinction between defamatory and mere false statements was sufficient to invalidate the law.  But, in his concurring opinion, he declined to sign onto the larger notion that the courts may not be a final arbiter of truth in political debate.

The four dissenting judges argued that the U.S. Supreme Court had already held that there was no distinction between criminal and civil cases, in the 1964 case of Garrison v. Louisiana, which stated: “That speech is used as a tool for political ends does not automatically bring it under the protective mantle of the Constitution” and that “[K]nowingly false statements and statements made with reckless disregard of the truths do not enjoy constitutional protection.”

But, it isn’t absolutely clear that those statements, which were dicta (i.e. statements about legal points not precisely at issue in the case) to the extent that the distinguished between defamatory statements and mere false statements, are, or remain, good law.

While the Washington State case involved a statement about which way a candidate voted on funding for a particular facility and the character of that facility, the fact that the Washington State law (like Colorado’s) included false statements about ballot issues surely informed its ruling.

Many false statements about a political candidate could be defamatory, although the one at issue likely was not, because the target of the false statement in the Washington State case won with 79% of the vote anyway, which indicates little harm to his reputation.  But, almost no false statement about a ballot issue could ever be defamatory.  Ballot issues are not people, and hence cannot suffer injuries to their reputations.

Given that ballot issues are often debated in terms of facts, rather than reputation or personalities, and that ballot issue materials are often widely distributed, the risk of criminal liability for shoddy research in a ballot issue campaign is high under the law as it existed, but the risk vanishes, if the law were to be amended to meet the state supreme court’s requirement of a defamatory statement.

At first glance it would appear that Washington State and Ohio have issued conflicting decisions on a constitutitional issue of political importance, the kind of cases that often go to the U.S. Supreme Court.  But, U.S. Supreme Court review of the Washington State case is unlikely because generally, it reviews only cases which would have a different result if an incorrect interpretation of federal law or the United States Constitution was involved.  This is important because the Washington case, while it extensively analyzes the federal First Amendment right to free speech, apparently relies on both the federal and Washington State’s constitution for its holding.

Prospects For Colorado

No one has been successfully convicted in recent memory of making false political statements, largely as a result of the reluctance of prosecutors to press such cases.  The legislature amended the false political statements law in 2002 and 2005, in a manner whose net effect was to make the law against political lies tougher.

The Colorado Supreme Court stated in dicta in the 1991 criminal libel case of People v. Ryan (involving a different, but similar statute) in a case involving a man lying about his ex-girlfriend (most citations omitted) that:

The Court later extended the application of the New York Times “actual malice” rule to cases where criminal sanctions were imposed for criticism of the official conduct of public officials. Garrison v. State of Louisiana. Despite the separate interests served by civil and criminal libel statutes, at least historically, the Court concluded that the same constitutional limitations applied where defamation of public officials was concerned. Today, in civil or criminal libel actions brought by public officials, truth is an absolute defense, and only false statements made with “actual malice” are subject to sanctions.

The criminal libel statute on its face requires only knowledge that you are making the statement, and imposes strict liability for your knowledge of the falsehood of the statement made, so the Ryan case effectively rendered the criminal libel case inapplicable to most political cases where the “actual malice” standard and other protectiosn apply, so until a court challenge is brought, the political false statements law is the only one involved and its constitutionality is uncertain.

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