Seditious Libel, Today and 225 Years Ago

Gov. Jay Inslee made the following statement [Thursday]He announced his support of legislation that is currently being written to ban candidates from spreading lies about fair and free elections, even if it threatens violence.

January 6 serves as a reminder of not just the one-year ago insurrection, but also that candidates and elected officials are trying to take down our democracy. They will do it by provocation violence. I propose that Washington do something today.

“Soon, the Senate and House of State will introduce legislation that would make it an offense for politicians and elected officials not to intentionally lie about elections. Inslee stated that the proposed law was narrowly targeted to only include false statements made with the intent of undermining election results or process. It also excludes lies likely to cause or incite to lawlessness.

Brandenburg v. Ohio (395 U.S. 444) (1969) has established that speech may be restricted where it might incite to lawlessness. This legislation does not address what candidates may say about one another, unlike Rickert, a state supreme court case, 161 Washington.2d 843 (2007).

The legislation seeks compliance with relevant U.S. supreme court and state opinions. Inslee explained that it was about elected and candidate officials knowingly throwing bombs at democracy, when such actions are likely to lead to violence. We can ban political violence, and protect democracy by doing this. To protect democracy, Congress and the states can do much more. Any proposal to protect the will and institutions of voters that determine who governs us is welcome.

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The draft language for statutory legislation is not yet available. It’s possible that it would be constitutionally redundant and possibly even more restrictive than existing law. Commit crimesThis was not only “the goal of undermining election results” but also (2) the likely outcome and (3) what the intended result would be. imminentIt would likely mean within 24 hours or days, as Inslee does not specify. Brandenburg v. Ohio “incitement” exception.

Shouting “burn it down” or “break in and ransack” to a mob standing in front of a building, with the purpose of causing them to commit crimes, is constitutionally unprotected—indeed, whether the speech consists of knowing lies or even opinions or truthful statements. (R.A.V. v. City of St. Paul This could preclude the use of incitement laws to target specific statements regarding elections. But that is a complicated question. However, such speech is likely to be illegal under Washington’s general penal law. (See also this interpretation of that statute).

However, I am assuming, based upon the Governor’s general declaration, that he has bigger fish than he thinks: I get the impression that he wants to know lies that can cause lasting harms, whether attempted revolution or criminal non-compliance with law, and not only imminent. This concern is factually plausible. Indeed, it is an old concern, which dates back at least to the Founding era, and in particular to the debates about the Sedition Act of 1798 and similar speech restrictions—laws that generally banned (to quote the relevant part of the Sedition Act),

false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress …, or the President …, with intent to defame [them]  … or to bring them … into contempt or disrepute; or to excite against them … the hatred of the good people of the United States.

Act backers stressed the limitation of law to only “false and malicious” statements, unlike the English commonlaw of seditious liability. Below is Justice Chase’s instructions to the jury. U.S. v. CooperYou can read more about the Sedition Act here.

When a man attempts destroy the faith of the people, in their officers, their supreme magistracy, and their legislative, it saps the foundations of government.

Here’s one by Justice Iredell Fries in a CaseIredell was protecting the Sedition Act of 1798. Fries, however, wasn’t brought to trial under that Act.

What caused the insurrection that erupted in Pennsylvania’s western areas? The people will tell you that they were misrepresented by the government and presented to them as the opposite of what was rightfully theirs.

Due to such falsehoods, our country was almost destroyed by civil war [I believe this refers to the Whiskey Rebellion -EV]A certain amount of money was spent, almost two million dollars. This might be considered the cost of libels.

The liberty of the press is, indeed, valuable—long may it preserve its lustre! It has converted barbarous nations into civilized ones—taught science to rear its head—enlarged the capacity-increased the comforts of private life—and, leading the banners of freedom, has extended her sway where her very name was unknown. But, as every human blessing is attended with imperfection, as what produces, by a right use, the greatest good, is productive of the greatest evil in its abuse, so this, one of the greatest blessings ever bestowed by Providence on His creatures, is capable of producing the greatest good or the greatest mischief….

If men are far from information sources, they must depend almost entirely on accounts received from other people. If they have truthful accounts, then their hearts or heads must be blamed if they act or think wrongly. If their accounts are falsified, their best mind and best heart can not be used as evidence against them. It is impossible to determine the cumulative effect of innumerable artifices either through direct lies or by invidious insinuations that are told daily upon both capable and virtuous minds.

This being the undisputed truth, how can any society allow any person to lie to its citizens? With the express intent to mislead them and cause discontent or insurrection which seems so likely to ensue? It is believed no government in the world ever was without such a power….

Combinations that attempt to overthrow a law are considered to be criminal. Falsehoods, in order to produce such combinations, I should presume, would come within the same principle, as being the first step to the mischief intended to be prevented; and if such falsehoods, with regard to one particular law, are dangerous, and therefore ought not to be permitted without punishment—why should such which are intended to destroy confidence in government altogether, and thus induce disobedience to every act of it?

Although libels can be wrongly punished in monarchies there are not as many necessary in a republic. In the second case the necessity is greater because a republic depends more on its citizens’ support. They are directly or indirectly the source of any authority and must be given their bias. Take away from a republic the confidence of the people, and the whole fabric crumbles into dust….

Gov. Inslee.

This is a serious concern, and was held by important leaders in the Framing Era. However, I believe that the legal system has retreated from penalizing such seditious statements. This is partly due to criminalizing outright lies (false) and malicious statements) regarding government

  • Unnecessarily, you could endanger the legitimacy of legitimate opinions or deter them from being heard.
  • You run the risk of suppressing evidence that may be accurate.
  • There are risks of selective enforcement being used by government officials.

These problems can be seen as an example. U.S. v. Cooper This was recognized by the Supreme Court in 1964. They concluded that

Although Sedition Act wasn’t tested by this Court, its validity was challenged in court. Fines levied in its prosecution were repaid by Act of Congress on the ground that it was unconstitutional…. Justices of the Court also assumed responsibility for invalidating this Act. These views reflect a broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment….

[Though false, malicious allegations against specific public officials may be punished,]”No American court of final resort ever suggested or held that prosecutions for libel against government should have any legal place in American jurisprudence.”

The Washington Supreme Court also struck down laws that prohibited lies in elections campaigns, regardless of whether they were about initiatives. 119 Vote No! CommitteeCandidats or? Rickert). In such cases, fraud is more of a concern than losing confidence in government. The courts tend to have a split view. Compare In re Chmura (Mich. 2000); State v. Davis (Ohio App. 1985), (both upholding such electoral lie statutes). Susan B. Anthony List v. Driehaus (6th Cir. 2016);281 Care Comm. v. Arneson (8th Cir. 2014); Commonwealth v. Lucas (2015); and the two Washington Supreme Court cases (all striking them down). Laws that prohibit lies concerning the mechanics behind voting that are aimed to deceive people about how, when and where they vote may also be considered constitutional. These laws focus only on narrow questions that can easily be determined and they don’t actually protect the government’s reputation.

Importantly, however, the Washington cases affirmed that the penalty for seditious litigation was unjust. They emphasized the need to be punished with New York Times v. Sullivan“The Sedition Act of 1798 which censored speech on government has been almost unanimously condemned” and laws that ban lying about “government affairs,” that are “coerced”, were rejected.[]Presuppose silence and force of law[] the State will ‘separate the truth from the false’ for the citizenry…. The First Amendment exists precisely to protect against laws … which suppress ideas and inhibit free discussion of governmental affairs.”

Again, I agree that lies about the government—whether about election results, police abuse, or many other subjects—can at times lead, have at times led, and will at times lead to criminal violence. However, the American First Amendment precedents argue that the government should not be allowed to penalize speech for the fear of affecting its credibility and legitimacy. This could lead to criminal activity (even speech found to have been knowingly false by judges and prosecutors).