Washington’s Governor Wants To Prevent Another January 6 with Unconstitutional Censorship

Washington Governor Jay Inslee would like to make lying about elections a crime. This would be a violation of the First Amendment.

Inslee uses the anniversary for the U.S. Capitol Riot to support his claim. “January 6 reminds us not only about the unrest that occurred one year ago but also of an ongoing attempt to destroy our democracy by elected officials and candidates.” “They are prepared to do so by inciting violence. Today, I suggested that we do something about this,” he wrote last Wednesday.

He doesn’t say what it has to do about elections in Washington state. Washington is the only country where his law applies.

Inslee had five Republican state legislators who held a rally in August to support the conspiracy theory of a fraudulent 2020 presidential election. They cannot be punished for such speech, because the First Amendment protects such arguments—yes, even false arguments.

Inslee thinks he can get around these protections by targeting falsehoods that are spread “for the purpose of undermining the election process” and “likely to incite or cause lawlessness.” While the official text of the bill has not yet been made public, Governor Inslee seems certain it will be within the legal parameters. Brandenburg v. OhioThe 1969 Supreme Court decision stating that speech inciting unlawful action was not protected.

However, this precedent calls for the “imminent” threat of legal action. Eugene Volokh at UCLA is a professor of law and says that this threshold does not seem to be too low.

Volokh says, “If I stand outside of a police station shouting ‘burn it down’, that is a call for lawless actions.” But just declaring that an election was fraudulent and should be investigated is not incitement. Washington already has an existing law to criminalize speech that incites imminent violence.

Volokh points out that judges have been resistant to giving officials the power to sanction certain types of false statements about government. Some laws such as the one that prohibits lying about elections’ dates and locations have proven to be effective. However, trying to ban speech questioning the legitimacy of elections results is reminiscent of the Sedition Act of 1798 which allowed for the prosecution of anyone publishing “false or scandalous writings” regarding the United States. Volokh declares that “this is part the U.S. Debate which is literally 225 year old.”

The Sedition Act expired in 1801, but Inslee’s arguments echo the arguments made for the act back then—the idea that if false speech undermines the government’s credibility, it may foster violence against the government. Many courts have since recognized the power of such censorship to suppress valid allegations regarding government misconduct. Volokh claims that Inslee does not have the court precedents in his favor. Volokh has more information on this proposal.

Inslee’s attempts are ironic in a way. A law that bans criticisms of elections would certainly raise doubts regarding the legitimacy of elections. The law will encourage distrust in the government by trying to stop it.

In case there are any questions about whether Inslee grasps the limits on the government’s power to censor, he has defended his proposal by blithely invoking the “yelling ‘fire’ in a crowded theater” cliché. This quote is used by public figures since 1919. Schenck v. United StatesThis is almost always a sign that he doesn’t understand the history of First Amendment. To convince others that you will censor with restraint, you should not quote from an instance authorizing the detention of anti-draft protesters.