from the besides-everything dept

I know that people who identify tribally as Democrats or Republicans often like to accuse the other team of being especially censorial, but the unfortunate fact is that elected officials in both parties seem equally interested in using the power of the state to take away 1st Amendment rights. For every misguided effort by Florida, Texas, or Georgia to attack the 1st Amendment rights of websites, we see a Colorado or New York going in the other direction.

For every Republican bill in Congress demanding censorship of some types of content, you have Democrats seeking to censor other kinds of content. You can argue that the reasons behind one side’s wish to censor is more pure than the other side’s, but that’s not how the 1st Amendment works — and anyone who doesn’t realize how any of these laws would be easily (and widely) abused by the other side has not paid any attention to the history of how speech suppressive laws work.

Entering into this fray, we have Washington state Governor Jay Inslee, who, at the beginning of the year, announced plans for a law to criminalize “false speech” about elections.

“Soon, legislation will be introduced in the state House and Senate that would make it a gross misdemeanor for candidates and elected officials to knowingly lie about elections. The proposed law is narrowly tailored to capture only those false statements that are made for the purpose of undermining the election process or results and is further limited to lies that are likely to incite or cause lawlessness,” Inslee said.

He claimed, dubiously, that such a law is okay under the Brandenburg test, that says speech that is directed to inciting or producing imminent lawless action and is likely to incite or produce such action can be restricted. But, that’s a very stringent test, and lies about elections are almost never going to rise to that standard.

The actual bill appears to be wildly unconstitutional, even as it tries to write itself into the Brandenburg standard:

Every elected official and candidate who has filed for public office under chapter 29A.24 RCW and who knowingly makes false statements or claims regarding the election process or election results, which statements or claims are made for the purpose of undermining the election process or election results and are directed to inciting or producing imminent lawless action and such statements or claims produce such action, related to any election conducted in the state, is guilty of a gross misdemeanor punishable under RCW 9A.20.021 and, if convicted, immediately forfeits the elected office.

This is already problematic on multiple levels. If the speech already meets the Brandenburg test, then it’s unclear why a new law is needed. But, furthermore, how do you distinguish “undermining the election process” from… engaging in “get out the vote” campaigns or trying to get people not to vote. The definitions don’t help much here, as deterring a voter from voting freely is included as “undermining the election process” but is encouraging a voter to vote one way — or even just to stay home and not vote — actually “undermining the election process” or is it just a standard part of electioneering?

Indeed, such a law would almost certainly be widely and dangerously abused by those in power. An awful lot of politicians (and just partisans in general) will always claim that folks on the other side are “lying about elections.” Sometimes they are. Sometimes they misspeak. Sometimes they mislead. Sometimes they say things out of context. Sometimes they exaggerate. But that shouldn’t result in potential jail time.

But, under this law, you can see that opponents of politicians on both sides of the political debate would almost certainly bring cases under this law claiming random statements “undermine the election process” in an attempt to (1) waste time, resources, money, and attention of candidates, and (2) in the hope that maybe they win one and force that candidate to forfeit elected office.

And that’s not even touching on the simple fact that political speech is the most important speech to be protected, and anything deliberately criminalizing political speech is an incredibly dangerous decision.

As more and more people have pointed out just how unconstitutional this is, rather than admit the problems of the bill, Inslee is doubling down. He recently defended this plan with a bunch of nonsense. His office highlights that a couple of constitutional law professors have looked over the bill and kinda shrugged and said “maybe it doesn’t violate the 1st Amendment?” But when your strongest supporting comment — from notoriously partisan law professor Laurence Tribe — starts out with this giant caveat:

I can’t say with complete confidence that the Governor’s elections/democracy bill will in the end survive all judicial challenges…

Then perhaps it should be a sign that your bill has serious problems.

Inslee’s speech in support of the bill is not just ridiculous, but it’s simply astoundingly ignorant of how his own political enemies would turn this bill around on him:

Politicians are not above anyone else who would incite violence by knowingly, recklessly, or maliciously spreading lies about lawfully run elections.

The Big Lie, that we can’t trust our democracy to count the votes, has become a weapon. It’s being used all over America — including our state — and it will again incite violence. There are many examples where the law punishes lying on official documents or under oath — and I believe some standard should apply here.

Using their power or popularity, they lie — whether knowingly, recklessly or maliciously — to foment violence against others and against the foundations of American democracy. By asserting a right to violently subvert democracy, they assert the right to overturn the popular will determined by elections, if that’s the only way they think they can achieve power. Their intent is to harm.

Lots of 1st Amendment lawyers have looked at the various aspects of the Big Lie and concluded that it would be nearly impossible to get any politician on claims that they incited imminent violence — even those who spoke at the rally on January 6th right before a mob of clueless, ignorant insurrectionists besieged the Capitol.

But, just put this law in the hands of the proponents of the Big Lie and think how this plays out. Those people have no compunction at all about insisting that those who say that Biden clearly and easily won the election, that there was no meaningful evidence of fraud, and that our elections were some of the most secure ever… that they are the ones lying about an election and that they are the ones inciting violence.

In other words, this would become a tool for grievances by anyone in politics against opponents, whether based in reality or in delusions.

The 1st Amendment prohibits these kinds of laws for that very reason.

So many of these laws seem to be written in the naïve belief that political opponents will never use those laws or never be in power themselves. And that is a very dangerous assumption, which historically never seems to hold up.

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Filed Under: 1st amendment, disinformation, elections, free speech, jay inslee, lies, washington

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