Thursday, September 08, 2005

Hasen today links to a case in which the Washington Public Disclosure Commission had fined a Green candidate $1000 for a false statement in a campaign flyer. The appellate court reversed a lower court and the commission, finding that the statute was facially unconstitutional.
This is a follow up to No on 119! v PDC, which struck down an earlier version of the statute because it didn't conform to New York Times v. Sullivan. Sullivan, of course, overturned a libel award based on an ad by Martin Luther King Jr, and was one of the key victories of the civil rights movement, as well as the leading landmark on defamation and the First Amendment. The Washinton legislature passed a new statute, again violating the principles of NYT v. Sullivan. The commission then proceded to enforce the new unconstitutional statute.
I find this process frustrating. An important case comes along, like No on 119!, and they just ignore it, pass a new statute, continue the same old pattern of unconstitutional censorship, and get away with it. Freedom of speech in campaigns is too important to be sacrified this way. So far, I haven't found a solution.

The case relied in part of No on 119! from the Washington Supreme Court, and in part on ACLU v Heller, a ninth circuit case which applied McIntyre and struck down a Nevada disclaimer statute, and severely and properly critized the 7th Circuit's Majors v Abell, my case in which Judge Posner erroneously upheld a disclaimer statute over a dissent by Easterbrook.

The case raises several other questions. It's a first amendment case; for reasons I don't understand, the ACLU, for the Green party candidate, failed to raise state constitutional claims. Although they won on appeal, after losing below, and maybe the court below would have ruled erroneously anyway, it's vital to give the courts more than one winning issue. State constitutional claims provide a different avenue to the desired result, and should rarely if ever be waived. Hypothetically, the Roberts court could overturn NYT v. Sullivan, and endanger this ruling, where if it had been on dual state and federal constitutional grounds, it would remain solid precedent.

Plaintiffs did raise an interesting claim - that due process requires a jury trial. (again, was this solely a federal claim? Around here the right to a jury trial is a state constitutional issue) The court found it didn't need to reach that issue.
I welcome anyone's thoughts. I've been making a habit of getting cases dismissed in local courts by insisting on the right to jury trial, but I haven't tried this as to the election commission. I guess the procedure is that the commission assesses the fine, and only if it is not paid would the AG file suit to collect, at which time the jury demand would be timely. But Washington may handle it differently.

Two things I need to add to this post:
It is closely related to an earlier story I did on another Washington Public Disclosure Commission misconduct case, the chamber of commerce one. [to do - add link]
And, the winning lawyer here was a blogger, a co-blogger at begging to differ, as pointed out by Howard Bashman. Begging to differ orginated the sunday comics feature on blogs, which might have been a big factor in how over the last year or two I'm spending less time on law and more on webcomics.

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