Bearing False Witness

By Larson, Carlton F. W. | The Yale Law Journal, March 1999 | Go to article overview
Save to active project

Bearing False Witness

Larson, Carlton F. W., The Yale Law Journal

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)


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.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Cite this article

Cited article

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

Bearing False Witness


Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?