¶29
Madsen, J.(dissenting) — The impression left by the majority’s rhetoric, that oppressive government regulation is at issue in this case, is simply wrong. When cases decided by the United States Supreme Court are properly applied, it is obvious that RCW 42.17.530(1)(a) infringes on no First Amendment rights.
¶30 Unfortunately, the majority’s decision is an invitation to lie with impunity. The majority opinion advances the efforts of those who would turn political campaigns into contests of the best stratagems of lies and deceit, to the end that honest discourse and honest candidates are lost in the maelstrom. The majority does no service to the people of Washington when it turns the First Amendment into a shield for the “unscrupulous . . . and skillful” liar to use knowingly false statements as an “effective political tool” in election campaigns. Garrison v. Louisiana, 379 U.S. 64, 75, 85 S. Ct. 209, 13 L. Ed. 2d 125 (1964). It is little wonder that so many view political campaigns with distrust and cynicism.
¶31 The majority is wrong when it says that state government cannot constitutionally regulate truth or falsity of political speech. No such blanket rule exists under the First Amendment, and no such blanket rule was ever agreed to by a majority of this court in State ex rel. Public Disclosure Commission v. 119 Vote No! Committee, 135 Wn.2d 618, 957 P.2d 691 (1998). There is no question that the First and Fourteenth Amendments embody our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, *858and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). But it is equally true that the use of calculated falsehood is not constitutionally protected. “Neither the intentional lie nor the careless error materially advances society’s interest in ‘uninhibited, robust, and wide-open’ debate on public issues.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 340, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974) (quoting N.Y. Times, 376 U.S. at 270).
¶32 The United States Supreme Court has made it absolutely clear that the deliberate lie in political debate has no protected place under the First Amendment because such lies do not advance the free political process but rather subvert it:
At the time the First Amendment was adopted, as today, there were those unscrupulous enough and skillful enough to use the deliberate or reckless falsehood as an effective political tool to unseat the public servant or even topple an administration. That speech is used as a tool for political ends does not automatically bring it under the protective mantle of the Constitution. For the 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.
Garrison, 379 U.S. at 75 (emphasis added) (citation omitted).
¶33 The majority’s premise that there can be no regulation of political speech whatsoever cannot be squared with the United States Supreme Court’s conclusion that under the First Amendment:
Calculated falsehood falls into that class of utterances which “are no essential part of any exposition of ideas, and 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. . . .” Chaplinsky v. New Hampshire, 315 U.S. 568, 572[, 62 S. Ct. 766, 86 L. Ed. 1031 (1942)]. Hence the *859knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection.
Id. (emphasis added) (first alteration in original).
¶34 The majority is also wrong when it asserts that the only time that a false statement about a candidate for office can be burdened is when the statement constitutes civil defamation, actionable in tort law. This premise is no more accurate than the majority’s conclusion that government cannot regulate political speech by proscribing the known lie.
¶35 The “actual malice” standard, under which false statements made with actual malice, that is, with knowledge of their falsity or reckless disregard as to truth or falsity, are not protected speech, applies in contexts other than civil defamation suits. The United States Supreme Court has not restricted the standard to civil defamation and, most notably, has applied it to a criminal prosecution. The majority’s conclusion cannot be reconciled with decisions of the Court having the final authority on the meaning of the First Amendment.
¶36 Because the majority declines to follow precedent holding that false statements under the actual malice standard are not protected speech, it engages in a strict scrutiny analysis of RCW 42.17.530(1)(a)’s constitutionality. However, if the actual malice standard is met the speech falls within a class of speech that is not constitutionally protected. Therefore, a statute that proscribes speech under this standard does not have to meet the strict scrutiny/ compelling governmental interest test that applies to statutes regulating protected political speech.
¶37 Further, the majority refuses to recognize that the actual malice standard is an exceedingly high standard to meet. Most political speech does not even approach being subject to regulation under this standard; the standard prohibits only the very worst untruths — those made with knowledge of their falsity or with reckless disregard to *860truth or falsity. In addition, the burden of proof is also high — proof must be by clear and convincing evidence. The actual malice standard is deliberately difficult to satisfy, precisely because free speech rights are at issue. Therefore, much nuanced speech, and all speech that constitutes opinion rather than fact, will simply fall short of it.
¶38 Finally, while the majority would prefer that no entity have authority to make final decisions on whether speech may be regulated and whether any regulations that are enacted conform to First Amendment requirements, this authority is constitutionally vested in the courts. Under RCW 42.17.530(1) the courts will continue to act as the final arbiter of any administrative decision.
¶39 Ultimately, the majority’s claim of government censorship does not reflect the statute or the legislature’s attempt to prohibit unprotected speech. Accordingly, I dissent.
ANALYSIS
¶40 Fundamentally, the majority ignores the fact that the actual malice standard is based on two vital principles under the First Amendment. The first is that free political expression is so prized in our system of self-governance that, as to matters of public concern, including matters of self-governance such as the election of those who will represent the people, some false speech must necessarily be protected. A speaker attempting to persuade others to his or her point of view may “ ‘resort [ ] to exaggeration, to vilification of men who have been, or are, prominent in church or state, and even to false statement.’ ” N.Y. Times, 376 U.S. at 271 (quoting Cantwell v. Connecticut, 310 U.S. 296, 310, 60 S. Ct. 900, 84 L. Ed. 1213 (1940)). These “ ‘liberties’ ” are necessary “ ‘to enlightened opinion and right conduct on the part of the citizens of a democracy.’ ” Id. (quoting Cantwell, 310 U.S. at 310).Therefore, “erroneous statement is inevitable in free debate” and “it must be protected if the freedoms of expression are to have the “breathing space’... ‘needled] ... to survive.’ ” Id. at 271-72 (third alteration in original) (quoting Nat’l Ass’n *861for Advancement of Colored People v. Button, 371 U.S. 415, 433, 83 S. Ct. 328, 9 L. Ed. 2d 405 (1963)). Thus, we depend upon more speech, not less, to arrive at truth.
¶41 Nonetheless, while “there is no such thing as a false idea” under our Constitution, Gertz, 418 U.S. at 339 (emphasis added), “there are categories of communication and certain special utterances to which the majestic protection of the First Amendment does not extend.” Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 504, 104 S. Ct. 1949, 80 L. Ed. 2d 502 (1984). Among these categories is the false statement of fact. Thus, the second principle that serves as a foundation for the actual malice standard is that “ ‘there is no constitutional value in false statements of fact.’ ” Id. at 504 n.22 (emphasis added) (quoting Gertz, 418 U.S. at 340).
¶42 “Although honest utterance, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and deliberately published about a public official, should enjoy a like immunity.” Garrison, 379 U.S. at 75. The Court has repeatedly held that false statements made with actual malice are not constitutionally protected. E.g., Gertz, 418 U.S. at 340 (“[n] either the intentional lie nor the careless error materially advances society’s interest in ‘uninhibited, robust, and wide-open’ debate on public issues” (quoting N.Y. Times, 376 U.S. at 270)); Bill Johnson’s Rests., Inc. v. Nat’l Labor Relations Bd., 461 U.S. 731, 743, 103 S. Ct. 2161, 76 L. Ed. 2d 277 (1983) (“false statements are not immunized by the First Amendment right to freedom of speech”); Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 52, 91 S. Ct. 1811, 29 L. Ed. 2d 296 (1971) (plurality opinion) (“[Calculated falsehood, of course, falls outside ‘the fruitful exercise of the right of free speech’ ” (quoting Garrison, 379 U.S. at 75)), overruled on other grounds by Gertz, 418 U.S. 323; Time, Inc. v. Hill, 385 U.S. 374, 390, 87 S. Ct. 534, 17 L. Ed. 2d 456 (1967) (“[b]ut the constitutional guarantees can tolerate *862sanctions against calculated falsehood without significant impairment of their essential function”); St. Amant v. Thompson, 390 U.S. 727, 732, 88 S. Ct. 1323, 20 L. Ed. 2d 262 (1968) (“[n] either lies nor false communications serve the ends of the First Amendment”); Linn v. United Plant Guard Workers of Am., Local 114, 383 U.S. 53, 63, 86 S. Ct. 657, 15 L. Ed. 2d 582 (1966) (“the most repulsive speech enjoys immunity provided it falls short of a deliberate or reckless untruth”).
¶43 The actual malice standard thus accommodates both the “national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open,” N.Y. Times, 376 U.S. at 270, and the premise that “there is no constitutional value in false statements of fact,” Gertz, 418 U.S. at 340. To give effect to both principles, the actual malice standard protects a great deal of false speech, providing the necessary “breathing space” for free political speech and the unfettered exchange of ideas. Thus, the innocent or negligent false statement is protected in order to provide the necessary breathing space. But the actual malice stándard does not permit the knowing lie, or the lie made with reckless disregard of its falsity — thus giving effect to the precept that there is no constitutional value in false statements of fact in and of themselves.
¶44 A statement is made with actual malice if it is made with knowledge of its falsity or with reckless disregard for truth or falsity. N.Y. Times, 376 U.S. at 279-80. The test is a subjective test, with “reckless disregard” meaning a “subjective awareness of probable falsity: ‘[tjhere must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.’ ” Gertz, 418 U.S. at 334 n.6 (quoting St. Amant, 390 U.S. at 731). Actual malice must be proved by clear and convincing evidence. N.Y. Times, 376 U.S. at 285-86.
¶45 RCW 42.17.530(1)(a) incorporates these constitutional standards and therefore does not abridge freedom of speech. The statute provides:
*863(1) It is a violation of this chapter for a person to sponsor with actual malice:
(a) Political advertising... that contains a false statement of material fact about a candidate for public office. However, this subsection (1)(a) does not apply to statements made by a candidate or the candidate’s agent about the candidate himself or herself.[10]
¶46 “Actual malice” means “to act with knowledge of falsity or with reckless disregard as to truth or falsity.” RCW 42.17.020(1). A violation of RCW 42.17.530(1)(a) must be proved by clear and convincing evidence. RCW 42.17.530(2).
¶47 The majority reasons, though, that the elements of a defamation action are prerequisites to finding speech unprotected under the New York Times standard. Decisions by the United States Supreme Court show that this is not true. The New York Times standard has been applied outside the context of civil defamation suits. As one court accurately summarized, “calculated falsehoods are of such slight social value that no matter what the context in which they are made, they are not constitutionally protected.” Vanasco v. Schwartz, 401 F. Supp. 87, 93 (E.D.N.Y. 1975). There is no requirement that all the elements of a defamation cause of action, specifically damages, must be proved. If the speech falls within the actual malice standard, it is unprotected speech.
¶ 48 For example, in Brown v. Hartlage, 456 U.S. 45, 102 S. Ct. 1523, 71 L. Ed. 2d 732 (1982), the Court found unconstitutional as applied a Kentucky law that provided a candidate for public office had to forfeit his office if he erred in stating that he would, if elected, serve at a reduced salary. Forfeiture was required even though the statement was made in good faith and promptly repudiated. The Court addressed three possible justifications for the statute’s *864application, the third of which was “as an application of the State’s interests and prerogatives with respect to factual misstatements.” Id. at 54. The Court observed that “demonstrable falsehoods are not protected by the First Amendment in the same manner as truthful statements.” Id. at 60. However, as in its other decisions, the Court also emphasized the need for adequate breathing space for freedoms of expression necessitating some erroneous statement. Id. “[A]bsolute accountability for factual misstatements in the course of political debate” produces a “chilling effect” that is “incompatible with the atmosphere of free discussion contemplated by the First Amendment in the context of political campaigns.” Id. at 61.
¶49 The Court then noted that “[although the state interest in protecting the political process from distortions caused by untrue and inaccurate speech is somewhat different from the state interest in protecting individuals from defamatory falsehoods, the principles underlying the First Amendment remain paramount.” Id. (emphasis added). When compatible with the interest that is involved, “ ‘we depend for ... correction not on the conscience of judges and juries but on the competition of other ideas.’ ” Id. (alteration in original) (quoting Gertz, 418 U.S. at 339-40). The preferred remedy is generally more speech, not enforced silence. Brown, 456 U.S. at 61.
¶50 The Court observed that there was no showing that the candidate had made the disputed statement about forgoing his salary other than in good faith and without knowledge of its falsity and without reckless disregard as to falsity, and he retracted it when he discovered it might be false. Accordingly, the Court reasoned that applying the statute to nullify his “election victory was inconsistent with the atmosphere of robust political debate protected by the First Amendment.” Id. at 61-62. By using the actual malice standard to test the constitutionality of the election statute, the Court showed that the actual malice standard is not limited to defamation actions.
*865¶51 In Garrison, the Court applied the actual malice standard in a case involving an action by the government against an individual — a prosecution for criminal defamation under a Louisiana statute that did not require proof of damages. Garrison, 379 U.S. at 65 n.1. The Court addressed the issue "whether, in view of the differing history and purposes of criminal libel, the New York Times rule also limits state power to impose criminal sanctions for criticism of the official conduct of public officials.” Id. at 67. The Court said the reasons that led to the holding in New York Times
apply with no less force merely because the remedy is criminal. The constitutional guarantees of freedom of expression compel application of the same standard to the criminal remedy. Truth may not be the subject of either civil or criminal sanctions where discussion of public affairs is concerned. And since “. . . erroneous statement is inevitable in free debate, and ... it must be protected if the freedoms of expression are to have the “breathing space’ that they ‘need ... to survive’. . .,” [N.Y. Times,] 376 U.S., at 271-272, only those false statements made with the high degree of awareness of their probable falsity demanded by New York Times may be the subject of either civil or criminal sanctions.
Garrison, 379 U.S. at 74 (emphasis added) (some alterations in original).
¶52 The actual malice standard for determining when speech is constitutionally protected has also been applied in a case involving a wrongful dismissal action brought by a public school teacher alleging he was unconstitutionally dismissed for making false statements in discussing issues of public concern, Pickering v. Board of Education, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968), and to a suit for invasion of privacy based on false statements where a matter of public concern was involved, Time, Inc., 385 U.S. 374.
¶53 The importance of New York Times and other defamation cases decided by the United States Supreme Court involving public officials and public figures is that in these cases, the Court explained the constitutional principles *866that also apply when determining whether a state law constitutionally regulates false statements during a political campaign. But these defamation cases do not hold or even suggest that the actual malice standard does not apply in other contexts. As the Court said in Garrison, 379 U.S. at 75 (quoting Chaplinsky, 315 U.S. at 572), lies about public officials are clearly outweighed by “ ‘the social interest in order and morality.’ ” It follows that lies about candidates during a campaign for public office are of the same nature. A deliberately made false statement is not constitutionally protected merely because it is made in the course of a political campaign. Vanasco, 401 F. Supp. at 91-92; see Garrison, 379 U.S. at 75. Fundamentally, the government has a compelling and legitimate interest in preserving the integrity of the election process. Eu v. S.F. County Democratic Cent. Comm., 489 U.S. 214, 231, 109 S. Ct. 1013, 103 L. Ed. 2d 271 (1989); see Brown, 456 U.S. at 61 (recognizing “the state interest in protecting the political process from distortions caused by untrue and inaccurate speech”); Vanasco, 401 F. Supp. at 100 (“[u]ndoubtedly, deliberate calculated falsehoods when used by political candidates can lead to public cynicism and apathy toward the electoral process”); Snortland v. Crawford, 306 N.W.2d 614, 623 (N.D. 1981) (“[u]ndoubtedly, the State interest in preserving the integrity of the election process and allowing the electorate to choose among candidates on the basis of accurate information is of paramount importance,” subject to the requirement of a stringent mental culpability requirement). A state may adopt “ ‘generally applicable and evenhanded restrictions that protect the integrity and reliability of the electoral process.’ ” U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 834, 115 S. Ct. 1842, 131 L. Ed. 2d 881 (1995) (quoting Anderson v. Celebrezze, 460 U.S. 780, 788 n.9, 103 S. Ct. 1564, 75 L. Ed. 2d 547 (1983)).
¶ 54 The calculated falsehood in the course of an election campaign can distort the electoral process by misinforming the voters and so interfere with the process “upon which democracy is based.” William P. Marshall, False Campaign *867Speech and the First Amendment, 153 U. Pa. L. Rev. 285, 294 (2004). As Marshall notes, and as quoted above, using the known lie as a tool is at odds with the premises of democratic government and the orderly way in which change is to be effected. Id. (citing Garrison, 379 U.S. at 75). False statements can lower the quality of campaign discourse and debate, generating response to the attacks rather than engagement on major issues. Marshall, supra, at 294. False advertising also may give rise to or exacerbate voter alienation and distrust of the political process. Id. at 295.
¶55 And, as the concurrence in 119 Vote No! suggested, “a law prohibiting a person from sponsoring with actual malice political advertising containing false statements of material fact about a candidate for public office” implicates the “societal interest in individual reputations.” 119 Vote No!, 135 Wn.2d at 635-36 (Madsen, J., concurring). The harm that results from false statements about an opponent can include reputational injury on the part of the individual who is attacked. Marshall, supra, at 296. But in addition, where these attacks are allowed, this type of harm can also deter qualified persons from seeking political office, resulting in harm to the democratic community. Id.
¶56 In light of these interests, there is no reason to treat the calculated falsehood with any greater protection in the context of a campaign than the Court said is constitutionally required in a defamation action involving a public official or public figure and a matter of public concern, or in the other contexts where it has applied the standard. These interests justify the actual malice standard in the context of political campaigns. They also warrant the conclusion that the calculated lie about a candidate for office during an election campaign is not subject to correction only through more speech or only through private defamation actions. As both Brown and Garrison indicate, such speech may be constitutionally regulated.
¶57 Since New York Times was decided, a number of states have enacted measures that incorporate the actual malice test; some of these statutes were amended following *868invalidation of former versions found not to meet the New York Times standard. See, e.g., Colo. Rev. Stat. Ann. § 1-13-109 (LexisNexis) (violation is a misdemeanor); Fla. Stat. Ann. § 104.271 (West) (violator subject to civil penalty of up to $5,000); Minn. Stat. Ann. § 211B.06 (West) (violation is a gross misdemeanor); Mont. Code Ann. § 13-37-131 (LexisNexis) (a violator is subject to liability in a civil action brought by the commissioner or county attorney for an amount up to $1,000); N.C. Gen. Stat. Ann. § 163-274(8) (LexisNexis); Ohio Rev. Code Ann. § 3517.21(B) (LexisNexis) (a violator is subject to a fine of not more than $5,000 or imprisonment of not more than six months, or both, pursuant to Ohio Rev. Code Ann. § 3517.992(V)); Or. Rev. Stat. § 260.532(1), (5), (8) (in addition to stating a cause of action for false statements made relating to a candidate, the statute provides that if judgment is rendered against one who has been nominated or elected to office (other than state senator or representative), and the finder of fact finds by clear and convincing evidence that the false statement reversed the outcome of the election, the defendant will be deprived of the nomination or office). Some states have more limited statutes, which punish only knowingly made false statements. E.g., Alaska Stat. § 15.56.014 (a violation is a misdemeanor); Mass. Gen. Laws Ann. ch. 56, § 42 (West) (“[n]o person shall make or publish, or cause to be made or published, any false statement in relation to any candidate .. . which is designed or tends to aid or to injure or defeat such candidate”; a knowing violation is punishable by a fine of not more than $1,000 or imprisonment for not more than six months); Tenn. Code. Ann. § 2-19-142 (LexisNexis) (violation is a misdemeanor); Utah Code Ann. § 20A-11-1103 (LexisNexis); W. Va. Code Ann. § 3-8-11 (LexisNexis) (violation is a misdemeanor punishable by a fine of not more than $10,000 or not more than one year in jail, or both); Wis. Stat. Ann. § 12.05 (West).11
*869¶58 In Pestrak v. Ohio Elections Commission, 926 F.2d 573 (6th Cir. 1991), the court overturned the district court’s holding that all parts of a former Ohio statute regulating false statements during election campaigns were unconstitutional. The court rejected the argument that regardless how the statute was enforced, it was unconstitutional because it distinguished among types of political speech based on its content, calling the argument “untenable.” Id. at 577. The court explained that the subsection under which the individual complainant had been charged “punishes making a false statement either knowingly or with reckless disregard as to its falsity. These portions of the statute clearly come within the Supreme Court’s holdings in Garrison and New York Times” where the Court concluded that false political speech does not merit constitutional protection if the statements are made with actual malice. Id. (citations omitted). The court concluded that on its face the statute that the complainant had been charged under was directed at speech that is not constitutionally protected.
¶59 In a subsequent case, the court found that another portion of the same former Ohio statute unconstitutionally regulated speech based upon its implications and therefore reached more speech than declared unconstitutional in Garrison. Briggs v. Ohio Elections Comm’n, 61 F.3d 487, 494 (6th Cir. 1995).
¶60 A number of other courts have also invalidated various former state statutes prohibiting false political advertising precisely because they did not incorporate the actual malice standard. In State v. Burgess, 543 So. 2d 1332, 1334 (La. 1989), the court addressed former La. Rev. Stat. Ann. § 18:1463(C)(1) (1977), which prohibited any person from anonymously disseminating any material “ ‘containing any statement which makes scurrilous, false, or irresponsible adverse comment about a candidate for *870election.’ ” The state contended the statute did not violate constitutional standards since it forbade “anonymous false statements designed to mislead voters in an election.” Burgess, 543 So. 2d at 1335. The court disagreed with this characterization, emphasizing that “[t]he standard for constitutionally protected false speech in the context of public figures” is the New York Times standard of actual malice. Id. While the statute at issue applied to public figures by its nature, the word “false” used by the legislature did not conform to the constitutional standard and instead encompassed protected speech. The words “ ‘scurrilous’ and ‘irresponsible adverse comment’ [were] so broad as to include both true speech and protected false speech about a candidate,” rather than only unprotected false speech as the state claimed. Id. Because the actual malice standard was not used, the statute regulated protected speech; therefore, its regulation of speech had to satisfy the strict scrutiny constitutional standard. Id. at 1335-36.
¶61 The Minnesota Court of Appeals invalidated a former version of that state’s statute which criminalized intentional participation in paid political advertising or use of campaign materials regarding the personal or political character of a candidate, or the candidate’s acts, which “ ‘the person knows or has reason to believe is false and that is designed or tends to elect, injure, or defeat a candidate.’ ” State v. Jude, 554 N.W.2d 750, 753 (Minn. Ct. App. 1996) (bold omitted) (quoting former Minn. Stat. § 211B.06(1) (1988)). Calling the New York Times actual malice standard “plainly the pattern to which the statute must be trimmed,” the court said that a criminal sanction cannot be imposed for political speech that does not meet that standard. Id. at 754. The court held that the statute was unconstitutionally overbroad because the “reason to believe” language in the Minnesota statute departed from the “reckless disregard” component of the actual malice standard and extended the statute’s prohibition to constitutionally protected statements. Id.
¶62 In Vanasco, a panel of three federal judges held that challenged sections of a former New York statute and fair *871campaign code were unconstitutional on their face because they did not conform to the New York Times actual malice standard. The provisions prohibited political advertisements or other writings, speeches, etc., during a campaign for nomination or election that “ ‘misrepresent [ed] any candidate’s qualifications’ including the use of ‘personal vilification’ and ‘scurrilous attacks’; any ‘misrepresentation of a candidate’s position’; and any ‘misrepresentation of any candidate’s party affiliation or party endorsement.’ ” Vanasco, 401 F. Supp. at 88 (citations omitted) (quoting provisions).
¶ 63 In Montana, a former statute provided that it was “ ‘unlawful for a person to willfully or negligently make or publish a false statement about a candidate’s public voting record or to make or publish a false statement that reflects unfavorably upon a candidate’s character or morality5 ” or to “ ‘willfully or negligently provide false information to a candidate concerning another candidate’s public voting record when the person knows or should know that the information will be made public during the course of a campaign.’ ” Mont. Right to Life Ass’n v. Eddleman, 999 F. Supp. 1380, 1383 (D. Mont. 1998) (quoting former Mont. Code Ann. § 13-37-131(1), (2) (1995)), appealed on other grounds and aff’d, 343 F.3d 1085 (9th Cir. 2003). The appellate court held that the statute unconstitutionally burdened political speech insofar as it prohibited negligent false statements and otherwise failed to satisfy the New York Times standard. Mont. Right to Life, 999 F. Supp. at 1385 (showing redaction of offending portions of statute).
¶64 In a similar vein, under a former version of Hawaii’s statute, a candidate who agreed to adhere to the state’s Code of Fair Campaign Practices and then breached it was subject to censure by the Hawaii Campaign Spending Commission. Former Haw. Rev. Stat. § 11-193(a)(16) (2004). The Federal District Court of Hawaii addressed a censured candidate’s First Amendment challenge to provisions of this law, which stated that the candidate would “ ‘refrain from the use of personal vilification, character defamation, or *872any other form of scurrilous personal attacks on any candidate or his family’ ” and would “ ‘not use campaign material relating to any candidate’s election which misrepresents, distorts, or otherwise falsifies the facts regarding the candidate.’ ” Ancheta v. Watada, 135 F. Supp. 2d 1114, 1117 (D. Haw. 2001) (quoting provisions 2 and 3 of the Code of Fair Campaign Practices).
¶65 The court first noted that generally defamatory speech is not protected speech under the First Amendment, but in the case of speech by public officials on “matters of public concern and political discourse,” the actual malice standard must be satisfied before the speech will fall within this class of unprotected speech. Id. at 1122. “[W]ithout such a rule, speakers would be chilled in criticizing or otherwise commenting on matters of their own governance.” Id. However, the challenged provisions were not limited to statements that were made knowing they were false, or made with reckless disregard as to truth or falsity, as is required to meet the New York Times actual malice standard.12 The district court accordingly concluded that the provisions regulated protected rather than unprotected speech and, after engaging in a strict scrutiny analysis, held that the statute was unconstitutional both as applied and facially.
¶66 As do these courts, I believe that the actual malice standard is both a necessary and a sufficient standard for regulating false campaign speech. Because “it is essential that the First Amendment protect some erroneous publications as well as true ones” in order to fully effectuate the rights set forth, St. Amant, 390 U.S. at 732, lies may be prohibited only under the very high New York Times standard. Accord Garrison, 379 U.S. at 74; see Vanasco, 401 F. Supp. at 93 (regulation of speech of public figures “during campaigns for political office where the constitutional guarantee of freedom of speech ‘has its fullest and most urgent *873application’ ” must be subject to no less than the New York Times actual malice standard (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 91 S. Ct. 621, 28 L. Ed. 2d 35 (1971))). Just as no greater standard than the actual malice standard is required when assessing whether false statements are unprotected by the First Amendment, no lesser standard may be used, either. “[N] either the defense of truth nor the standard of ordinary care would prevent self-censorship and the subversion of First Amendment policies.” Snortland, 306 N.W.2d at 623. That protective standard is present here.
¶67 It is noteworthy that this court has previously upheld the constitutionality of a provision in the former Washington Code of Professional Conduct prohibiting a lawyer from knowingly making false statements of fact about the qualifications of a candidate for election or appointment to a judicial office, or false accusations against a judge or other adjudicatory officer. In re Discipline of Donohoe, 90 Wn.2d 173, 180, 580 P.2d 1093 (1978). While observing that a person does not surrender free speech rights when becoming licensed as an attorney, the court also concluded that the First Amendment does not protect utterance of a statement with knowledge that it is false, even during a judicial campaign. Id. at 181. Importantly, the court observed that such speech is not beneficial to the public and generally is harmful to the person against whom the statements are made. Id.
¶68 In sum, RCW 42.17.530(1)(a) prohibits false statements of facts that are material to the election campaign. By limiting the statute’s reach to facts, the legislature has avoided unconstitutionally infringing on opinions and ideas. The statute requires that the false statement be sponsored with actual malice, defined to mean to act with knowledge of the falsity or with reckless disregard as to truth or falsity. RCW 42.17.020(1). It requires proof by clear and convincing evidence, thus meeting the constitutional standard of convincing clarity. N.Y. Times, 376 U.S. at 285-86.
*874¶69 The majority, however, finds constitutional infirmity in the fact that the statute does not apply to statements made by a candidate, or his or her agent, about the candidate. In the course of its erroneous strict scrutiny analysis, the majority agrees with Ms. Rickert’s contention that the statute is not narrowly tailored because it does not apply to such statements.
¶70 The Court has noted several times with regard to regulations with First Amendment implications that “ ‘reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind.’ ” McConnell v. Fed. Election Comm’n, 540 U.S. 93, 207-08, 124 S. Ct. 619, 157 L. Ed. 2d 491 (2003) (upholding certain parts of the McCain-Feingold bill regulating campaign contributions) (quoting Buckley v. Valeo, 424 U.S. 1, 105, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976)); see also Virginia v. Black, 538 U.S. 343, 363, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003) (addressing a statute that prohibited cross burning with intent to intimidate; state could outlaw such acts without prohibiting all intimidating messages).
¶71 Ms. Rickert maintains, however, that by penalizing false statements made about candidates but not those made by the candidates themselves, the statute runs afoul of the principle that a statute cannot proscribe speech on the basis of one content element that is unprotected if it additionally proscribes speech on the basis of other content elements, and the majority agrees. For example, the Court in R.A.V. v. City of St. Paul, 505 U.S. 377, 384, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992), pointed out that “the government may proscribe libel; but it may not make the further content discrimination of proscribing only libel critical of the government.” This principle does not apply here. The Court further explained:
When the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable, no significant danger of idea or viewpoint discrimination exists. Such a reason, having been adjudged neu*875tral enough to support exclusion of the entire class of speech from First Amendment protection, is also neutral enough to form the basis of distinction within the class. To illustrate: A State might choose to prohibit only that obscenity which is the most patently offensive in its prurience — i.e., that which involves the most lascivious displays of sexual activity. But it may not prohibit, for example, only that obscenity which includes offensive political messages. And the Federal Government can criminalize only those threats of violence that are directed against the President since the reasons why threats of violence are outside the First Amendment (protecting individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur) have special force when applied to the person of the President. But the Federal Government may not criminalize only those threats against the President that mention his policy on aid to inner cities. [Finally], a State may choose to regulate price advertising in one industry but not in others, because the risk of fraud (one of the characteristics of commercial speech that justifies depriving it of full First Amendment protection) is in its view greater there. But a State may not prohibit only that commercial advertising that depicts men in a demeaning fashion.
Id. at 388-89 (citations omitted). As the Court said, the constitutional infirmity arises only where the proscribed category of speech is made a “vehicle [ ] for content discrimination unrelated to [its] distinctively proscribable content.” Id. at 383-84.
¶72 Here, the basis for the discrimination consists entirely of the reasons that the calculated falsehood may be proscribed, and therefore no significant danger of viewpoint discrimination exists. As explained, lies about public officials are clearly outweighed by “ ‘the social interest in order and morality,’ ” Garrison, 379 U.S. at 75 (quoting Chap-linsky, 315 U.S. at 572), because they undermine the integrity and reliability of the election process, distort the political process through untrue and inaccurate speech that misinforms the voters and so interferes with the democratic process and the orderly way that change should be effected, *876lower the quality of campaign discourse and debate by generating response to the attacks rather than engagement on major issues, lead to public cynicism and apathy toward the electoral process, and cause or increase voter alienation and distrust of the political process. Further, such false speech implicates the societal interest in individual reputations, which concerns both the individual who is attacked and those qualified persons who will be deterred from seeking political office — with the resulting harm to the democratic community. These reasons “have special force” when the statements are made about a candidate for office (not including false statements by a candidate about himself or herself). Moreover, the proscribed statements are, in every respect, within the scope of the category of unprotected speech — the proscribed speech is not a “vehicle [ ] for content discrimination unrelated to [its] distinctively proscribable content.” R.A. V., 505 U.S. at 383-84 (emphasis added).
¶73 The majority also finds unconstitutionality in the procedural aspects of the statute because liability under the statute is determined by an administrative agency rather than a jury. Aside from the majority’s general disparaging remarks about nonelected officials and its unwarranted claims of censorship, the thrust of the majority’s dissatisfaction is that the Public Disclosure Commission determines in the first instance whether there is a violation and, the majority says, there is no requirement that a reviewing court conduct an independent, de novo review, assessing whether the actual malice standard was satisfied. The majority says, in fact, that “[t]he campaign opponents will not be guaranteed... independent, de novo judicial review.” Majority at 855.
¶74 The majority cites Bose, 466 U.S. at 514, which sets out the principle of independent judicial review in First Amendment cases, but evidently believes it does not apply, apparently as a result of the majority’s rejection of the actual malice standard for campaign speech.
*877¶75 Whether RCW 42.17.530 (or any other statute) expressly provides for independent, de novo judicial review, such review unquestionably applies as a matter of constitutional law. A court is required to “ ‘ “make an independent examination of the whole record,” so as to assure [itself] that the judgment does not constitute a forbidden intrusion on the field of free expression.’ ” Bose, 466 U.S. at 508 (quoting N.Y. Times, 376 U.S. at 285 (quoting Edwards v. South Carolina, 372 U.S. 229, 235, 83 S. Ct. 680, 9 L. Ed. 2d 697 (1963))). The independent review rule is “a rule of federal constitutional law.” Bose, 466 U.S. at 510. The Court explained in Bose that in the First Amendment cases where independent review occurred, the limits of the unprotected category as well as the unprotected character of the speech were determined by judicial evaluation of special facts. Id. at 504-05. The Court said:
In such cases, the Court has regularly conducted an independent review of the record both to be sure that the speech in question actually falls within the unprotected category and to confine the perimeters of any unprotected category within acceptably narrow limits in an effort to ensure the protected expression will not be inhibited... . The principle of viewpoint neutrality that underlies the First Amendment itself also imposes a special responsibility on judges whenever it is claimed that a particular communication is unprotected.
Id. at 505 (citation omitted).
¶76 Independent, de novo judicial review is not limited to cases in which the actual malice standard is applied. Instead, as the Court observed in Bose, it has applied the principle of independent review in a number of First Amendment contexts, including cases where speech was claimed to be unprotected fighting words, incitement to riot, obscenity, child pornography, and defamation. See id. at 499, 504-08. Following Bose, the Court also applied independent judicial review to a First Amendment question in a case involving the question of whether Massachusetts could require private citizens organizing a parade to include a group imparting a message that the organizers did not *878want to communicate, and the Court had to examine the validity of state courts’ characterization of parades as lacking the element of expression, Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 579,115 S. Ct. 2338, 132 L. Ed. 2d 487 (1995), and a First Amendment question in a case involving a challenge to an ordinance that made it unlawful to oppose, molest, abuse, or interrupt a police officer in the execution of his duty, City of Houston v. Hill, 482 U.S. 451, 107 S. Ct. 2502, 96 L. Ed. 2d 398 (1987).13
¶77 Thus, irrespective of whether there is a statutory requirement for independent, de novo judicial review, the Constitution mandates such review. Accordingly, the absence of a statutory provision for independent judicial review does not chill free speech rights as the majority asserts.
¶78 Contrary to the majority’s conclusion, RCW 42.17-.530(1)(a) is constitutional because it does not proscribe protected speech.
¶79 The lead opinion in 119 Vote No! does not compel a different result both because it does not address the particular type of political speech at issue here, aimed at candidates as opposed to ballot measures, and because it was not a majority opinion. Nor does 119 Vote No! contain a majority opinion requiring that all of the elements for a defamation suit must be established in order for speech to fall outside First Amendment protections under New York Times. This is because the concurring opinion by Justice Madsen expressed the view that there “is merit to the contention that the Legislature may constitutionally penalize sponsorship of political advertising” containing “deliberate falsehoods about a candidate for public office” if “a narrower statute” was enacted. 119 Vote No!, 135 Wn.2d at 633 (Madsen, J., concurring). Such a statute could, the concurrence also suggested, protect the “societal interest in *879individual reputations.” Id. at 635-36 (Madsen, J., concurring). Lastly, as noted at the outset of this opinion, no majority in 119 Vote No! agreed that government cannot regulate speech in the context of a political campaign based on its truth or falsity under the actual malice standard.
CONCLUSION
¶80 I would reverse the Court of Appeals’ holding that RCW 42.17.530(1)(a) is facially unconstitutional. The statute accurately sets forth the New York Times standard for determining that certain false statements are not protected speech under the First Amendment, and this standard may constitutionally be applied to regulate candidates’ speech during election campaigns.
¶81 The majority’s rhetoric could lead one to believe that onerous government censorship is at stake. This is far from the case. Instead, the actual malice standard poses no danger to free political speech. First, it is the standard established by the Court to satisfy competing constitutional concerns. Second, whether political speech falls under this standard will not be left to the vagaries of political appointees or governmental agencies. Whether evidence supports a finding of actual malice is a question of law subject to independent, de novo judicial review. Third, the actual malice standard is a very difficult standard to satisfy, whether in the context of a civil defamation suit or in another context, such as the political campaign speech in question here. But where the standard is applicable, applying it will beneficially serve the voters, the candidates, and the democratic process.
¶82 False campaign statements made with knowledge of falsity or reckless disregard of truth or falsity undercut the trustworthiness of the election process, which can be twisted by untrue speech that deceives the voters and so impedes the process by which change should be brought about. False political speech can lower the value of campaign dialogue and discussion by generating reaction to *880attacks rather than fruitful discussion and debate on the issues. False campaign statements can cause public suspicion of candidates and their campaigns and engender indifference; it can lead to or increase voter alienation and mistrust of the political process. False campaign speech about candidates involves individual reputations, both the reputations of those who are attacked and of those who are qualified for public office but who will be deterred from running, with the result being harm to the democratic community.
¶83 I dissent.
Bridge, Chambers, and Fairhurst, JJ., concur with Madsen, J.
Reconsideration denied December 4, 2007.
10 In 2005, the statute was amended to add “or an electioneering communication” following the words “[plolitical advertising” at the beginning of subsection (a). Laws of 2005, ch. 445, § 10, at 1899. This amendment is not at issue in this case.
Some states have enacted laws that allow candidates to voluntarily sign codes of fair campaign practices, which generally include a promise not to use or permit false statements about an opponent in campaign advertising or other campaign *869communications. E.g., Cal. Elec. Code § 20440 (West); Haw. Code R. § 2-14.1-25 (and Ex. A); 10 Ill. Comp. Stat. 5/29B-10; Me. Rev. Stat. Ann. title 21-A § 1101; Mont. Code Ann. § 13-35-301; Nev. Rev. Stat. § 294A.290; N.Y. Elec. Law § 3-106 (McKinney); N.Y. Comp. Codes R. & Regs, title 9, § 6201.1.
In fact, the defendants did not attempt to argue that the provisions contained the actual malice standard. Ancheta, 135 F. Supp. 2d at 1122.
The requirement of independent, de novo judicial review is discussed extensively in State v. Kilburn, 151 Wn.2d 36, 49-52, 84 P.3d 1215 (2004).