(concurring) — [5] I agree with the majority that RCW 42.17.530 is facially unconstitutional because it sweeps protected First Amendment activity within its provisions by penalizing political speech, even if knowingly false, regarding an initiative measure. I write separately to emphasize that I am not convinced that the same is true where a statement contains deliberate falsehoods about a candidate for public office. In my view, there is merit to the contention that the Legislature may constitutionally penalize sponsorship of political advertising of such a nature by enacting a narrower statute than RCW 42.17.530.
In New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S. Ct. 710, 11 L. Ed. 2d 686, 95 A.L.R.2d 1412 (1964), the Court held that under the First and Fourteenth Amendments a public official is prohibited from “recovering dam*634ages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” The Court soon refined the “official conduct” rule to include “anything which might touch on an official’s fitness for office.” Garrison v. Louisiana, 379 U. S. 64, 77, 85 S. Ct. 209, 13 L. Ed. 2d 125 (1964). The New York Times rule, the Court said, is “based on a recognition that the First Amendment guarantee of a free press is inevitably in tension with state libel laws designed to secure society’s interest in the protection of individual reputation.” Monitor Patriot Co. v. Roy, 401 U.S. 265, 270, 91 S. Ct. 621, 28 L. Ed. 2d 35 (1971). This interest in reputation is what distinguishes speech concerning an initiative measure, which the majority correctly holds is protected even if knowingly false, and speech regarding individuals.
In Monitor Patriot, the Court held that the New York Times rule applies in the case of statements criticizing a candidate for public office. “[I]t is abundantly clear that . . . publications concerning candidates must be accorded at least as much protection under the First and Fourteenth Amendments as those concerning occupants of public office.” Id. at 271;11 see also Ocala Star-Banner Co. v. Damron, 401 U.S. 295, 91 S. Ct. 628, 28 L. Ed. 2d 57 (1971) (holding that plaintiff in capacity as candidate for county *635tax assessor was public official for purposes of New York Times rule in defamation action against newspaper which published false story that he had been indicted for perjury in a civil rights suit); Brown v. Herald Co., 698 F.2d 949 (8th Cir. 1983) (candidate running for office of sheriff is public official subject to New York Times rule). The Court reasoned: “[I]f it be conceded that the First Amendment was ‘fashioned to assure the unfettered interchange of ideas for the bringing about of political and social changes desired by the people,’ Roth v. United States, 354 U.S. 476, 484[, 77 S. Ct. 1304, 1308, 1 L. Ed. 2d 1498 (1957)], then it can hardly be doubted that the constitutional guarantee has its fullest and most urgent application precisely to the conduct of campaigns for political office.” Monitor Patriot, 401 U.S. at 271-72.
The Court’s decisions in New York Times and Monitor Patriot, and other cases, have primarily addressed the extent to which speech is protected. The other side of the coin, of course, is that where the actual malice standard is met, speech may subject the speaker to pay damages without running afoul of the First Amendment. Thus, statements about candidates for public office made with actual knowledge of falsity or with reckless disregard of whether they are true or false are not protected under the First and Fourteenth Amendments. A state, in short, may allow recovery of damages for defamation to public officials, including candidates for public office, provided that the New York Times actual malice standard is satisfied. Accordingly, although there is no case directly on point, it is reasonable to contend that the Legislature could enact a law prohibiting a person from sponsoring with actual malice political advertising containing false statements of material fact about a candidate for public office.
We need not, however, decide that issue because where an initiative measure is involved, as in this case, the First Amendment does not permit governmental censorship of political speech. There must be no impediment to free and *636open debate regarding such issues. For unlike the case where the societal interest in individual reputations is at stake, there is no competing interest sufficient to override our precious freedom to vigorously debate the wisdom of enacting a measure, even if that debate contains falsehoods as well as truths.12 The voters in this state are able to make an informed choice based upon freely advanced competing ideas, sorting the wheat from the chaff, and can compare what they hear and read with the text of a proposed measure.
Alexander, J., concurs with Madsen, J.
The Court also recognized:
The principal activity of a candidate in our political system, his “office,” so to speak, consists in putting before the voters every conceivable aspect of his public and private life that he thinks may lead the electorate to gain a good impression of him. A candidate who, for example, seeks to further his cause through the prominent display of his wife and children can hardly argue that his qualities as a husband or father remain of “purely private” concern. And the candidate who vaunts his spotless record and sterling integrity cannot convincingly cry “Foul!” when an opponent or an industrious reporter attempts to demonstrate the contrary. Any test adequate to safeguard First Amendment guarantees in this area must go far beyond the customary meaning of the phrase “official conduct.”
Monitor Patriot Co. v. Roy, 401 U.S. 265, 274, 91 S. Ct. 621, 28 L. Ed. 2d 35 (1971) (footnote omitted).
Cf. Citizens Against Rent Controll Coalition for Fair Hous. v. City of Berkeley, 454 U.S. 290, 297-98, 102 S. Ct. 434, 70 L. Ed. 2d 492 (1981) (drawing a distinction for First Amendment purposes between candidates’ election campaigns and ballot measure campaigns; First Amendment standard for core political speech prohibits the states from limiting the dollar amounts of contributions for and against ballot measures in order to “equalize” the information presented on both sides, unlike the situation where the governmental interest in avoiding danger of corrupt officeholders is sufficient to justify limits on contributions to a candidate’s election).