Don’t Criminalize Election Lies

Washington Gov. Jay Inslee announced legislation on the anniversary of January 6, 2011, at the U.S. Capitol. Jay Inslee introduced legislation making lying about election results illegal in the Evergreen State.

Inslee is a Democrat and said that the bill was necessary in order to safeguard democracy from an “ongoing coup attempt”, which is fuelled by false claims made by Donald Trump about 2020’s presidential election. Inslee, a Democrat, said that the defeated president was “yelling fire at the crowded theaterof democracy” in January. He used every analogy known to censors.

Trump’s arrogance continues to negatively impact the political system. According to polls, many Trump supporters believe that the election was stolen by Democrats. The bill by Inslee would present a problem even worse: A government with the power to sanction opposition candidates for political speech.

Candidates or elected officials would face a criminal offense if they made false statements about elections results. Violators could be sentenced to up to 12 months in prison, maximum $5,000 in fines, or both. Also, they could lose their office if convicted.

For a statement to be considered a violation of the law, it must have the intent to “incite” or “produce imminent lawless activity” and that the effect is achieved; or be used for “the electoral process or results”. Oder falsely claim entitlement to an office after legal challenges have been resolved and the results have been certified.

The Supreme Court in 1969 established a test to determine the first criteria. Brandenburg v. OhioThe First Amendment does not protect speech when it’s “directed” towards inciting “imminent and lawless action”, or “likely to result in that outcome.” Other criteria are intended to safeguard the image of government agencies. This is an even more questionable constitutional argument. This was the 1964 case New York Times v. SullivanThe U.S. Supreme Court quoted the Illinois Supreme Court and noted that no court of last resort had ever suggested that prosecutions for libel against government should be allowed in America’s system of jurisprudence.

This bill violates an important freedom of speech principle. It is not the job of the government to check the accuracy and veracity political statements. This law could have a chilling impact on the election. Picture a situation where the power party has the ability to prosecute its opponent for complaining excessively in a dispute election.

Even though Inslee’s bill passed constitutional scrutiny, it is still a serious violation of free speech principles. It is much easier to combat a lie than a law.