ELECTIONS ‑- INITIATIVE MEASURES ‑- ARGUMENTS‑-VOTERS' PAMPHLET.
The sponsors' arguments in favor of Initiative No. 194 are not in proper form for publication in the voters' pamphlet until certain statements have been modified or stricken.
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August 13, 1954
Honorable Earl Coe
Secretary of State
Olympia, Washington Cite as: AGO 53-55 No. 300
On August 5, 1954, you sent to us a copy of a proposed argument in favor of Initiative Measure No. 194, which had been submitted by the proponents for publication in the official voters' pamphlet. You have requested that "since this is a highly controversial subject," we review the argument and advise whether or not it contains any scandalous, libelous or defamatory matter.
In our opinion this argument is not, in its present form, proper to be included in the pamphlet.
The printing of a voters' pamphlet containing arguments for and against proposed initiatives and referendums is provided for by RCW 29.79.330et seq. RCW 29.49.360 provides:
"If in the opinion of the secretary of state any argument offered for filing contains any obscene, vulgar, profane, scandalous, libelous, defamatory, or treasonable matter, or any language tending to [[Orig. Op. Page 2]] provoke crime or a breach of the peace, or any language or matter the circulation of which through the mails is prohibited by any act of congress, the secretary of state shall refuse to file it: Provided, That the person submitting such argument for filing may appeal to a board of censors consisting of the governor, the attorney general and the superintendent of public instruction, and the decision of a majority of such board shall be final."
The final decision on whether or not an argument is to be printed, is vested in your discretion. We will, however, express our views on the legal interpretation of this statute.
It is a general rule of statutory construction that words are to be given their common or ordinary meaning. There can be little doubt about the meaning of "obscene," "vulgar," "profane" or "treasonable," but the words "scandalous," "libelous" and "defamatory" could have a strict legal meaning. We believe here, however, that they are used in their more general literary sense, as meaning "similar to" or "like" scandal, defamation or libel. Because of the number of words used and their similar nature, the maxim noscitur a sociis is applicable; i.e., the words should be known in the light of their associates. Further, the rule seems to be that when a term has both a common and a technical meaning, in the absence of a contrary legislative intent, it is presumed to be used with its common meaning. 2 Sutherland Statutory Construction 441, section 4919.
The truth or falsity of the statements made in the instant argument will bear materially upon the question of whether or not they fall within the statutory prohibition. Many statements, if untrue, might be said to be scandalous, libelous or defamatory, while if true, they would not be so classified. If you have any reasonable doubt as to the truth of any statements made in the argument, we suggest that you require that the statement be supported by some proof.
In your letter, you ask that we advise you whether in our judgment the argument is objectionable. Of course, the question is one of administrative discretion rather than legal analysis. Nevertheless, we will point out certain passages, which we believe could well be considered "libelous, scandalous, or defamatory" within the meaning of the statute.
[[Orig. Op. Page 3]] The second sentence of the proposed argument states:
"The alcoholic beverage interests have openly declared their intentions of inducing teenagers and younger children to become users of alcoholic beverages and have decried the obstacles which society has set up to hinder their doing so."
This language can be construed to infer either the commission of a crime, or an attempt or conspiracy to commit one. In this light, such words might well be "scandalous," "libelous" or "defamatory." Since these words are to be understood in their ordinary literary meaning, no nice distinctions need be drawn as to whether the statements are directed at an identifiable person, actual damage, pleading innuendoes, etc.
The second excerpt calling for attention is:
"They (alcoholic beverage interests) have used every conceivable device to arouse the interest of youngsters, even to the point of attempting recently to market in the State of Washington a beer of low alcoholic content, produced especially for children."
Whether every conceivable device to arouse youngsters' interests has been used is a question of fact, going to the motive of persons attempting to market a beer of low alcoholic content, if someone did actually do so. The acts alleged, induced by the motive charged might infer the commission of a crime, or the attempt to commit one. These statements might well infringe upon the legislative intent expressed in the quoted statute.
The next statement of concern is the third paragraph which criticizes the exploitation of animated cartoons in an effort to increase youth appeal. The motive of the advertiser is again a factual matter. This paragraph shows on its face that it is merely an expression of the sponsor's opinion. We believe that the sponsor is entitled to express such opinion, so long as it is not malicious or wholly unfounded in fact.
The last provision of the argument which should receive particular consideration is the statement that "the only real issue at stake [is]: 'Are we going to allow [[Orig. Op. Page 4]] beer salesmen to hawk their wares to our children in their homes?'" This well could be a statement within the statutory prohibition. It does not necessarily follow that a man who announces a telecast commercial is selling, or would sell, beer to minors in their homes. This statement imputes the crime of selling beer to minors or contributing to the delinquency of minors.
Advertising is a legitimate business. The fact that it is not possible to segregate the audience is often unfortunate, but until the law definitely provides otherwise, such advertising should not, by inference, be branded with the stigma of illegality. We have studied the text of the initiative diligently, and find no basis in fact for the sponsor's phrasing of the issue. So long as the factual statements are correct, let the inferences be what they may, however vicious. But the Secretary of State should be on the alert for erroneous factual statements compelling vicious or false inferences. This statement of the issue is clearly in error. Because of the inference to which it gives rise, we think it could well be considered libelousper se.
We have examined the proposed picture accompanying the argument and feel compelled to make the following observations. The picture depicts a home scene consisting of two children watching a beverage advertisement on television. The screen shows a view of a woman holding a glass of beer near her lips, while balloons indicate thoughts of filled beverage glasses in the minds of the children.
The state liquor board rules contain a "Guide to Advertising" which provides in sec. 1, page 120 of the Liquor Laws of Washington (1954 Supp.) as follows:
"* * * the board shall consider as objectionable and contrary to the public interest, any advertising which * * *:
"O. Relates to spirituous liquor and depicts a person serving or preparing drinks or holding a bottle, glass or other container in a manner indicating the consumption of liquor.
"P. Relates to malt beverages or wine and depicts a person in the act of consuming liquor."
[[Orig. Op. Page 5]]
The vice of the matter is that the picture depicts a scene which has not, and will not, be telecast in the state of Washington, under the rule quoted above. To this extent the picture creates a false inference. However, we must say in all fairness, that the defect is one which may pass unnoticed by most readers, since relatively few persons are familiar with the state rules governing liquor advertising. Furthermore, we cannot be sure that certain inadvertent violations of this rule may not occur on occasion. We merely direct this particular fact to your attention in order to aid you in making a final decision.
After carefully reviewing the entire argument, it is our opinion that in its present form, comply with the spirit of RCW 29.79.330. This statute is designed to preserve the dignity of one of the high offices of state government. It seeks to protect the public from the indirect use of one of its high governmental offices for the publication of matter unbecoming the dignity and good taste of society as a whole. In the eyes of the public, the state government indirectly vouches for the truth and accuracy of the arguments published in the voters' pamphlet. For this reason, the Secretary should be slow to accept argumentative material which he suspects to be violative of the intent of RCW 29.79.330.
We recommend to you that the sponsors' argument should not be accepted until the statements indicated above have been modified.
Very truly yours,
RALPH M. DAVIS
Assistant Attorney General