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“Fake News”: Preventing Falsehoods in Candidate Statements in Ballot Pamphlets

From Chief Justice Debra Stephens’ majority in Reykdal v. Espinoza, decided today by the Washington Supreme Court:

Incumbent Superintendent of Public Instruction Chris Reykdal sued to have the Thurston County Superior Court order the removal of one allegedly defamatory line in the voters’ guide pamphlet from challenger Maia Espinoza’s candidate statement. The superior court agreed that there was a substantial likelihood Reykdal could succeed in a defamation suit based on Espinoza’s statement. Using a supervisory power conferred by [Washington Code §] 29A.32.090(3)(b), [which authorizes the removal of statements that are very likely libelous,] the superior court ordered the secretary of state to edit out the offending line….

The legislature passed a law—by request of Reykdal—requiring every public school to provide age-appropriate “comprehensive sexual health education” to each student at all grade levels by the 2022-23 school year. The law tasks the superintendent and the Department of Health with making the appropriate learning standards and guidelines available to school districts and teachers on their websites. The law also requires that the superintendent develop and publish a list of curricula as a resource for schools, teachers, and other organizations. Schools are encouraged to review the curricula and choose a curriculum from the provided list of resources.

Consistent with the law, the superintendent’s website provides a list of sexual health education resources. One of the resources listed includes a fourth grade curriculum  from  Advocates  for  Youth.  This particular curriculum includes a handout for parents and guardians that refers users to additional resources, including the book It’s Perfectly Normal: Changing Bodies, Growing Up, Sex, and Sexual Health, by Robie H. Harris. The handout referencing the book states, “These resources all provide important, age-appropriate information about puberty and how our bodies change during this time. Please review these before sharing with your child so you feel ready to answer any questions they may have.” The book includes various illustrations of sexual health education material, including two pages with depictions of a couple having sexual intercourse in different positions.

Espinoza is one of six candidates who entered the 2020 primary for the superintendent of public instruction position. The secretary of state publishes a voters’ guide pamphlet for all elections involving statewide offices. Candidates for the superintendent position may submit a candidate statement and photograph for publication in the pamphlet. The statements may not exceed 200 words. The published voters’ guide pamphlets include a disclaimer on every page stating that candidate statements are printed as submitted and not edited for factual or grammatical accuracy.

Espinoza submitted a candidate statement that includes the sentence, “The incumbent ignored parents and educators by championing a policy that teaches sexual positions to 4th graders!” …

The trial court ordered that the sentence be removed, but the Washington Supreme Court concluded that (1) the statement was not false (more on that below), and (2) in any event there was no evidence that Espinoza knew the statement was false (or at least knew it was likely false but recklessly disregarded that possibility). Because of that, the court held, the statutory standard for removal—”The court shall not enter such an order unless it concludes that the statement is untrue and that the petitioner has a very substantial likelihood of prevailing in a defamation action”—wasn’t satisfied (and there was no need to reach Espinoza’s First Amendment argument).

But Justice González dissented; he concluded the statement was indeed false, and that recklessness could be inferred because the “‘allegations are so inherently improbable that actual malice may be inferred from the act of putting such extreme statements in circulation'”; The allegation that a public official would champion a policy teaching sexual positions to fourth graders, based on a faint trail of bread crumbs reaches the level of improbability to establish actual malice.” He also argued:

I would join those courts that have held voters’ pamphlets are limited public forums…. The State has not taken any intentional action to create [an unlimited] public forum via the voters’ pamphlet and, in fact, has set limitations on what speech may be included.

Since the voters’ pamphlet is a limited public forum, the government may establish “any reasonable restriction to ensure that the forum will be reserved for its intended purpose.” The restrictions “must only be viewpoint neutral and ‘reasonable in light of the purposes served by the forum.'” The restriction on false and defamatory speech gives candidates the opportunity to introduce themselves to voters while creating a mechanism to avoid exposing the secretary of state to legal liability for publishing actionable defamation. The restriction applies equally to all candidates whose statements are challenged as false and defamatory under the statute, and is therefore viewpoint neutral….

The voters’ pamphlet provides a vital, government-sponsored service: a neutral source for voter information. The citizens of Washington have expressed a strong public interest in not allowing the voters’ pamphlet be a forum for false or misleading statements about a candidate’s opponent. Espinoza’s statement was false and misleading, and Reykdal met the heavy burden established by the statute to have that statement removed.

I think the majority is correct that this particular statement isn’t false (more on that below). And it’s correct that, even if it were false, the Washington statute would require a showing that Espinoza knew it was false (or likely false), given that the statute incorporates the rules of modern defamation law.

But I wonder whether that sort of statutory scheme makes sense. The Court required a showing of knowing or reckless falsehood in libel cases brought by officeholders or candidates because of the danger of the “chilling effect”: If someone could be held liable for ruinous damages based on an innocent mistake, people would be unduly deterred from speaking.

Why should this rule, though, extend to exclusion from ballot pamphlets, where the speaker isn’t being threatened with legal liability? I’d think that in such a situation, the focus should be on whether the statement would lead voters to believe a false assertion, not on the author’s mental state. A categorical rule that a court could order the removal of a statement that was factually false, I think, would indeed be constitutional for the reasons the dissent gives: When all that’s at stake is whether speech can be included in a limited public forum, the government can impose any reasonable and viewpoint-neutral restriction; and exclusion of falsehoods is reasonable and viewpoint-neutral.

Now of course it’s possible that, in the heat of the election campaign, a judge’s decision about what to exclude may end up being unfair or just erroneous; so maybe such a hypothetical no-falsehoods-in-election-pamphlets law would be a bad idea. But I don’t think the risk of error should make it unconstitutional, precisely because of the absence of a serious chilling effect on speakers. (Query whether an exclusion of false defamatory statements would be viewpoint-based, because it would cover false criticism but not false praise; both false criticism and false praise can equally lead voters to be misinformed.)

[* * *]

Here’s some more on this particular factual dispute, if you’re interested; from the majority:

Reykdal argues that it is ridiculous to suggest he would support teaching sexual positions to fourth graders …. [But] he mistakenly assumes the word “teaches” in the candidate statement means that some form of classroom instruction by a school teacher is required for the statement to be true. Instead, the handout encourages parents and guardians to review the materials before sharing them with children to be ready to answer any questions their children may have.

Thus, the handout clearly implies that the parent or guardian reviewing the material should share it with children after appropriate preparation. This indicates that the 3Rs Curriculum intends that fourth graders view and learn from the It’s Perfectly Normal book with their parents or guardians as a supplement to classroom instruction. Indeed, the handout encourages it. And while the record does not show that Reykdal personally intended to teach sexual positions to fourth graders, Espinoza’s candidate statement criticized Reykdal’s policy and its results, not his personal teaching.

Reykdal [also argues] that the handout is not part of the curriculum …. While it is true that the handout’s book reference is not specifically listed in the curriculum, this does not break the logical chain of Espinoza’s statement: the policy requires the superintendent to recommend curricula, the 3Rs Curriculum includes the informative handout, the handout encourages parents and guardians to read and share the book with their children, and the book includes depictions of a couple having intercourse in two different positions. It is unlikely but truthful that the policy could result in unintentionally exposing fourth graders to depictions of, and thus “teaching” them, different sexual positions…..

Because the reference materials included in the 3Rs Curriculum provided on the superintendent’s website could inform fourth graders of different sexual positions, Reykdal has failed to meet his threshold burden of proving Espinoza’s statement is false.

And from the dissent:

Espinoza herself acknowledges that this is a “trail of bread crumbs” that led her to conclude Reykdal champions teaching sexual positions to fourth graders. It is also simply not a reasonable or even plausible interpretation of the facts. The fact that an outside organization reviewed this book, found that it was age appropriate, and recommended it to parents as one of many resources that they might find helpful in talking to their own children about puberty simply does not amount to Reykdal championing teaching sexual positions to fourth graders. The trail of bread crumbs is just too faint. Accordingly, I respectfully disagree with the majority that the trial court erred in finding the statement was false.

Thanks to reader Ramsey Ramerman for the pointer.


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Eugene Volokh

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