# Richmond v. Thompson > Washington Supreme Court · September 26, 1996 · 130 Wash. 2d 368 URL: https://www.frixlaw.com/law-library/cases/4711083 ## Case - **Full name:** Davis Richmond v. Woodrow Thompson - **Court:** Washington Supreme Court - **Decided:** September 26, 1996 - **Citations:** 130 Wash. 2d 368; 922 P.2d 1343; 1996 Wash. LEXIS 592 - **Precedential status:** Published - **Opinion:** Dissent by Dolliver - **Judges:** Dolliver, Johnson - **Cited by:** 56 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4711083 ## How later opinions describe it (automated extraction) - stating that only a public plaintiff must prove actual malice by clear and convincing evidence - stating that only a public plaintiff mast prove actual malice by clear and convincing evidence - rejecting the position that the First Amendment demands the application of a higher evidentiary standard at the summary judgment stage - noting that some false statements are protected so not to chill protected speech ## Opinion text Dolliver, J. — I dissent. I accept Defendant Woodrow Thompson’s letter merited only a qualified privilege under federal and state constitutional protections of his freedom of speech. See New York Times Co. v. Sullivan, 376 U.S. 254, 283 , 84 S. Ct. 710 , 11 L. Ed. 2d 686 , 95 A.L.R.2d 1412 (1964). I dispute the majority’s analysis of Defendant’s right to petition under article I, section 4, of the Washington Constitution. Our state constitution unambiguously guarantees its citizens the absolute privilege to petition the government. The trial court erred by denying Defendant’s defense of absolute privilege, and this court should reverse. This court looks first to state constitutional protections before resorting to the federal constitution. Collier v. City *390 of Tacoma, 121 Wn.2d 737, 745-46 , 854 P.2d 1046 (1993); Alderwood Assocs. v. Washington Envtl. Council, 96 Wn.2d 230, 237-38 , 635 P.2d 108 (1981). The majority’s discussion of the First Amendment right to petition, questionably expanding the qualified privilege identified in the factually distinguishable McDonald v. Smith, 472 U.S. 479 , 105 S. Ct. 2787 , 86 L. Ed. 2d 384 (1985), is unnecessary. Even assuming the majority accurately portrays the holding of McDonald , our parallel state provision assures independent and broader protection of Defendant’s right to petition the government. As the majority concedes, our state constitution may afford broader protection than parallel federal provisions where an independent basis for interpretation exists. State v. Gunwall, 106 Wn.2d 54, 61-62 , 720 P.2d 808 , 76 A.L.R.4th 517 (1986). Yet the majority then negates this principle by misapplying the oft-quoted "Gunwall factors” as a mechanical test of six mandatory elements. Majority at 380-83; see Gunwall, 106 Wn.2d at 58 . To the contrary, Gunwall by its own terms, explicitly providing "nonexclusive” and "neutral” factors "relevant” for comparing state and federal constitutional provisions, functions simply as a guide to the exercise of judicial discretion. Gunwall, 106 Wn.2d at 58 . The court need not fulfill every — or any — Gunwall factor to justify a broader reading of a parallel state constitutional provision. Gunwall, 106 Wn.2d at 58 . In the present case, Gunwall clearly endorses treatment of article I, section 4, as independent from the First Amendment right to petition. To aid identification of a broader state provision, Gunwall deems relevant both differences between texts and textual language. Gunwall, 106 Wn.2d at 58 . These factors exhort our affirmation of the greater protection of our state citizens’ right to petition. Article I, section 4, indisputably differs textually from the First Amendment: The right of petition and of the people peaceably to assemble for the common good shall never be abridged. *391 Const, art. I, § 4 (emphasis added). Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. U.S. Const, amend. I. Only superficial or spurious interpretation could produce the majority’s description of these textual differences as "nominal.” Majority at 380. The term "never” carries profound meaning central to the provision, and its inclusion we cannot so lightly dismiss. The text of article I, section 4, unambiguously directs an absolute privilege. The majority somehow interprets "never” to mean "sometimes.” Where a constitutional provision contains such plain and unambiguous language, however, we are not free to seek further interpretation. See, e.g., Anderson v. Chapman, 86 Wn.2d 189, 191 , 543 P.2d 229 (1975). "Never” means never. Noticeably, where the drafters intended a qualified right, they so indicated in equally clear language. The right to assemble clause includes the conditionals "peaceably” and "for the common good,” allowing reasonable restraint of that guaranty. See Const, art. I, § 4; see also State v. Gossett, 11 Wn. App. 864 , 527 P.2d 91 (1974). The right to petition, on the other hand, lacks any such qualifiers. Fundamental to liberty and democracy is the right to petition the government for redress of grievances. See Alderwood Assocs., 96 Wn.2d at 239-40 . This right bears particular import where the grievance concerns the activities of government officials and seeks satisfaction from the appropriate agency. By misreading our state constitution the majority has closed off this vital avenue of communication between the state and its citizens. Equally surprising, the unfounded limitation on the right of the individual will generate the exact effect the majority purports to avoid: publication of possibly erroneous allegations against government officials. Lacking the *392 deserved protection of article I, section 4, to pursue discreet redress via petition of government agency, Defendants only recourse would lie in the much more public and potentially damaging lawsuit. Smith and Alexander, JJ., concur with Dolliver, J. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4711083. Public record. Not legal advice.