For years, I have lamented how the Democratic party has embraced censorship and the criminalization of speech. I come from a liberal Democratic family in Chicago and the Democratic Party once championed free speech as the defining value of the party. Democratic politicians now lead calls for censorship to silence their opponents and corporate regulations to protect citizens from dangerous choices in reading material. The same concerns were raised this week after Washington Gov. Jay Inslee called for the criminalization of “lies” about election results. Inslee wants to convict people who raise election challenges or allegations. Such a law would threaten political speech and create a chilling effect for those who want to raise such concerns in contested elections.
Inslee made his comments as part of the Jan. 6th anniversary. It appears to follow Speaker Nancy Pelosi’s directive for Democrats to “preserve the narrative” of that day. According to the Seattle Times, Inslee declared that “it should not be legal in the state of Washington for elected officials or candidates for office to willfully lie about these election results.” He would make such comments a gross misdemeanor subject to incarceration.
Such a criminal law would be ripe for abuse and would create a chilling effect that would be positively glacial. We have seen other Democratic leaders use the criminal process in similarly reckless fashions.
This country has a long history of election fraud from Tammany Hall in New York to the Daley machine in Chicago. Raising doubts over such elections often forces greater public scrutiny and marshals resources to contest results. Indeed, Democratic lawyers like Marc Elias have challenged Republican victories as he and others denounced such GOP challenges as attacks on democracy.
Inslee’s proposals raise the same questions that we discussed in relation to “stolen valor” laws. I have previously criticized past prosecutions for stolen valor (here and here) as a threat to the first amendment. The Supreme Court struck down the Stolen Valor Act. In United States v. Alvarez, the Court held 6-3 that it is unconstitutional to criminalize lies — in that case lying about receiving military decorations or medals.
Inslee insisted that there would have to be “knowledge that there’s potential to create violence” for it to be considered a gross misdemeanor. What does that even mean? Any prosecutor could allege that a claim of election fraud was inviting another “Jan. 6th insurrection.” The claim itself would be treated as incitement. Indeed, this seems like an effort to evade the constitutional limits placed on incitement crimes by the courts.
The Inslee law would create a new and vague category for violent speech. In Brandenburg v. Ohio, the Supreme Court ruled in 1969 that even calling for violence is protected under the First Amendment unless there is a threat of “imminent lawless action and is likely to incite or produce such action.”
In this law, questioning elections (rather than calling for violence) would be treated as a crime based on its “potential for violence.” It would, in my view, be dangerously and flagrantly unconstitutional.
The “knowledge of the potential of violence” is such a nonsensical standard that it only magnifies the threat to free speech — and the underlying political motivation — in such legislation. Would such knowledge be shown by making the claim in a rally or protest? Would it depend on the actions of third parties or prior violent protests?
In Afghanistan, the Taliban just arrested a professor for “trying to instigate people against the system and was playing with the dignity of the people.” What is the difference between questioning election results with “knowledge of the potential of violence” and “trying to instigate people against the system”? At least the Taliban are open about their legislating orthodoxy.
Free speech demands bright lines. Ambiguity in the criminalization of speech creates the very chilling effect that the courts have sought to deter under our Constitution. In Lamont v. Postmaster-General, the Court invalidated a federal law requiring written request to receive communist political material “because of [a] possible chilling effect on [the] willingness of identified recipients to receive ‘communist political propaganda.'” In Smith v. California, the Supreme Court defined “chilling effect” as the “collateral effect of inhibiting the freedom of expression, by making the individual the more reluctant to exercise it.”
That is precisely what such an ambiguous law would do in Washington State.