In Defense of Free Speech

The right of free speech is one of a handful of our most cherished and important rights. And in three opinions, Justice Fairhurst showed a preference for government power to control or punish citizens for exercising their right to free speech. This is one of several areas where our basic values and our approaches to the proper role of government differ.

The three cases involved political speech, protest speech and commercial speech, and in all three cases the incumbent opposed the court’s decisions, which came down on the side of liberty. The consistency of the incumbent’s approach reveals her political philosophy.

In Rickert v. Public Disclosure Commission,[1] the issue was whether the authority of the Public Disclosure Commission (PDC) to decide the truth of campaign statements violated the U.S. and State Constitutional protections for political speech. In a race for a legislative seat the challenger said things about the incumbent’s record that were not true, and the incumbent complained to the PDC. The PDC is appointed by the governor, and they regulate campaign finances, a worthy goal. But they also had the authority to investigate the charge that one politician had lied, decide whether the charge was true, and fine the offender. But the offender, who claimed she did not lie at all, argued that she had rights to free speech over which the governor’s appointed commission had no Constitutional authority, and the Supreme Court agreed.

The majority’s opinion came down on the side of liberty. The people can decide which politician is telling the truth; some commission of folks appointed by the governor should not have the power to decide that for us. It’s a simple proposition, and one which the dissent could not accept. Justice Fairhurst joined the dissent, preferring that appointed commissions decide for all citizens which politician is telling the truth.

In Resident Action Council v. Seattle Housing Authority,[2] the issue was whether the Seattle Housing Authority had the right to prevent tenants from posting signs on their front doors. The signs included political messages, artwork and sometimes offensive symbols. These are low income housing apartments owned and operated by a Seattle Municipal agency. The tenants sued to enjoin enforcement of the ban and it was struck down as a violation of the tenants’ rights to free speech. The majority again came down on the side of liberty – a person’s home is their castle and they can put whatever slogan they want on their front door.

The dissent, including Justice Fairhurst, would have ruled that the government landlord can censor their tenant’s doors.

Finally, in Kitsap County v. Mattress Outlet,[3] the issue was whether a county had the right to impose its commercial sign ordinance on a retail business that hired people to stand on street corners and waive at passersby while wearing colorful oversized raincoats that displayed the business’s name. The majority ruled for liberty and declared that the county failed to show why a permit for such a sign was required, comparing the raincoat signs to signs advertising yard sales.

The dissent, including Justice Fairhurst, would have ruled that the retailer must obtain the government’s permission before the raincoats can come out.

In each of these cases, Jutice Fairhurstwould have ruled for the government and against a citizen’s liberty rights to free speech. I disagree with that approach.

To preserve liberty vote Bond for Justice.

[1] 161 Wn.2d 843 (2007)
[2] 162 Wn.2d 773 (2008)
[3] 153 Wn.2d 506 (2005)