Constitutional Law, Politics

Democratic Governor Calls For Criminalizing “Lying” About Election Results

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.

 

119 thoughts on “Democratic Governor Calls For Criminalizing “Lying” About Election Results”

  1. Tired of the usual lying January 6 “insurrection” spiel from the presstitutes? Then try out some real journalism for a change.

    1. “But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

      – Declaration of Independence, 1776
      _____________________________

      “It’s time to stop talkin’ and start chalkin'”

      – Chick Hearn, Lakers Broadcaster

  3. Too bad Governor Inslee didn’t pay as much attention to Seattle during the riots. Oh I forgot those were peaceful demonstrations.

  4. “Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.”

    – CS Lewis
    “God in the Dock: Essays on Theology”

    2. Thank you so much.

      Abraham “Crazy Abe” Lincoln And His Merry Band of Communist Successors are With America “Without End” to this Day.

    3. Is this guy going to be another democrat that uses racial priority in the distribution of vaccines?

  5. Daniel: All is good. My old submitted “paper” that I referenced,(early 1980s) argued that race-conscious factors created “substitute beneficiaries,” and worse, “substitute paymasters.” Again, sorry for my hasty earlier comment.

  6. This type of behavior should concern every civil libertarian, no matter what political leaning. It is intrusive, dangerous and vague. It goes against everything constitutional and flies in the face of the brave men and women who staked their lives to tell the truth!

    1. What is the truth. The true truth. Each faction has a different concept of the truth. Usually MSM and the lying Dems convince people they have the only true truth. I do not believe their version.

  7. OT

    DEATHS OF CHOICE

    Mother Jones Washington bureau chief David Corn said Friday on MSNBC’s “The Beat” that the COVID-19 deaths of the unvaccinated were deaths of choice.

    Corn said, “We’re not all the way there, but it is a tremendous accomplishment with the economy and everybody else, not just Joe Biden, that we got a long way back. Labor market got tight, good news people who are working because some wages are going up, and some people able to quit jobs in order to find better jobs. So all in all, I think the economic picture is not fantastic, but it’s much better than it was a year ago. And you could say the same thing about COVID. We still have a problem with COVID, but far fewer deaths, and the deaths are basically deaths almost of choice, people who are unvaccinated.”

    – Pam Key
    ________

    David Corn conjures images of the caterwauling 1980’s activists railing about AIDS, when all those affected had to do to avoid “deaths of choice” was abstain from their “behavior.”

    Additionally, they chose to maintain all privacy related to health “records” while current advocates demand that health “records” made public and openly displayed in order to obtain goods and services.
    ______________________________________________________________________________________________________________________________________________________________

    “A man can not have his cake and eat his cake.”

    – Thomas, Duke of Norfolk, to Thomas Cromwell, March 14, 1538

    1. I don’t think Cromwell is French?

      Anyway Fauci gave us all AIDS! I saw a reminder of that on a Tee shirt.

      1. The claim that Fauci gave us all AIDS is a clear example of the kind of free speech that Professor Turley addresses in his commentary: a clear falsehood. Oky1 has a constitutionally protected right to make such false statements.

        1. Precisely. Oky1 enjoys the freedom of speech, which is not qualified by the Constitution and is, therefore, absolute, and Fauci enjoys recourse in the courts for damages caused by defamation.

        4. At wish at times I had a better memory, but I still recall a bit.

          Dr Fauci is still at NIAID I believe. He’s been there a long time.

          Remember back when the Clintons were caught running a scam selling tainted Arkansas prisoner’s blood?

          And what ever became of that Bayer Corp selling tainted Factor 8 products?

          Then some stuff about selling faulty drugs for profit. What was all that stuff going on?

          For the citizen’s own good no doubt, like with all those lil black orphans up by NYC & lil white kids in the Appalachians Fauci was also trying to help.

          And best I recall back then all the cancer patients & hemophiliacs that needed blood or plasma transfusions were tickled pink Dr Fauci was there to help them also.

          All these decades later & there DR Fauci still is, Loving the people of the world to death it seems to some of us.

          Who knows, maybe I’ll remember more later?

          ***************

          prefix_66_title_rich Cali just passed law to say giving HIV to others and blood bank is only misdemeanor
          10-07-2017, 06:28 PM
          [Content is Protected, Please Register For Free To Unlock This Content]

          Gov. Jerry Brown signed a bill Friday that lowers from a felony to a misdemeanor the crime of knowingly exposing a sexual partner to HIV without disclosing the infection.

          The measure also applies to those who give blood without telling the blood bank that they are HIV-positive.

          Modern medicine allows those with HIV to live longer lives and nearly eliminates the possibility of transmission, according to state Sen. Scott Wiener (D-San Francisco) and Assemblyman Todd Gloria (D-San Diego), authors of the bill.

          “Today California took a major step toward treating HIV as a public health issue, instead of treating people living with HIV as criminals,” Wiener said in a statement. “HIV should be treated like all other serious infectious diseases, and that’s what SB 239 does.”

          Supporters of the change said the current law requires an intent to transmit HIV to justify a felony, but others noted cases have been prosecuted where there was no physical contact, so there was an argument intent was lacking.

          Brown declined to comment on his action.

          HIV has been the only communicable disease for which exposure is a felony under California law. The current law, Wiener argued, may convince people not to be tested for HIV, because without a test they cannot be charged with a felony if they expose a partner to the infection.

          “We are going to end new HIV infections, and we will do so not by threatening people with state prison time, but rather by getting people to test and providing them access to care,” Wiener said.

          Supporters of the bill said women engaging in prostitution are disproportionately targeted with criminal charges, even in cases where the infection is not transmitted.

          Republican lawmakers including Sen. Joel Anderson of Alpine voted against the bill, arguing it puts the public at risk.

          “I’m of the mind that if you purposefully inflict another with a disease that alters their lifestyle the rest of their life, puts them on a regimen of medications to maintain any kind of normalcy, it should be a felony,” Anderson said during the floor debate. “It’s absolutely crazy to me that we should go light on this.”

          Anderson said the answer could be to extend tougher penalties to those who expose others to other infectious diseases.

          http://www.latimes.com/politics/esse…htmlstory.html

          https://www.boxingscene.com/forums/non-boxing-talk/boxing-scene-lounge/779956-cali-just-passed-law-to-say-giving-hiv-to-others-and-blood-bank-is-only-misdemeanor

          1. Oky1,

            If knowingly infecting others with a crime….at one point in California a Felony Crime, punishable by Fines and Imprisonment perhaps…..is not firing people and thus depriving them of a livelihood with which to provide for their family (without any trial or commission of a criminal act) not a much worse punishment for a person that has not caused anyone to become infected with Covid?

            Add to this situation….even if you do get “fully vaccinated” no matter what that rapidly changing definition is….you can still get Covid and transfer it….all the while not even knowing you have it…..or the person that gets infected….whether vaccinated or not may not know they have it.

            The Vaccine does not stop transmission….it does in most cases minimize the symptoms of the infected person.

            We are seeing breakthrough cases meaning the Vaccine does not always work, wears off over time, or does not affect every. strain of the Covid Virus.

            So why does government….especially the Biden Administration and other Leftist run States and Cities treat un-vaccinated people like Small Pox carriers in the Old West?

            Surely it is not the science?

            1. George Washington & the founders were all confronted with multiple outbreaks/epidemics like with Small Pox at the time of founding of the nation but were smart enough to “Exclude” any “Emergency Exemptions” to the US Constitution.

              People should look for it, there’s nothing in the USC that says we have Rights except when the Govt/Pfizer/Fauci/Bill Gates cook up Bio-Weapons Gene Therapies. I didn’t see it anyway 😉

              If the Supreme Court is to interpret the USC & the laws emanating from it, it shouldn’t have taking them more the 5 to 10 minutes rule against any/all Fed/State/Local/Company mandatory vaccines with prejudice. ( this wording needs adjusted a bit.)

              The great thing about these illegal bio-weapons/mRNA stuff is that they are killing/injuring everyone in the population much faster then even then the creators of them thought. lol (Sarc Off)

              Fun Video about 5:30

              COVID PITCH MEETING

              329,444 views

              Jan 7, 2022
              190
              Share
              Download
              The American Journal
              The American Journal
              https://www.banned.video/watch?id=61d87b852158bd5f8de0b486

              1. MANDATORSHIP

                The closest the Constitution comes to providing any emergency power is Article 1, Section 9, Clause 2, wherein Congress is provided the power to suspend habeas corpus in a condition of Rebellion or invasion and when the public Safety requires it.

                The “necessary and proper” clause, Article 1, Section 8, Clause 18, is a redundancy and does not provide new powers but provides ONLY the power to make laws for carrying into execution powers provided by the Constitution, which is understood.

                Members of the judicial and executive branches have arbitrarily and unconstitutionally conjured “implied powers” which are false and fraudulent, and carry no weight or force.

                “Case law” is a useful history of adjudication which has no legal or constitutional legitimacy and carries no weight or force; attorneys and courts are provided no power to legislate, or to supersede or amend the Constitution.

                Implied and conjured powers are not dissimilar to “constructive treason” which was employed in 14th-century England to eliminate enemies through abuse of the power of the Sovereign as the narrow scope and delimitations of the customary definition of treason was prohibitive and restrictive.
                ______________________________________________________________________________

                Article 1, Section 9, Clause 2

                The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.
                ___________________________________________________________________________________________________________________

                Article 1, Section 8, Clause 18

                To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
                _______________________________

                Constructive Treason

                The word “constructive” is one of the law’s most useful frauds. It implies substance where none exists. There can be constructive contracts, constructive trusts, constructive fraud, constructive intent, constructive possession, and constructive anything else the law chooses to baptize as such. “Constructive” in this sense means “treated as”. … Constructive treason wasn’t “real” treason but a vaguely defined, less potent category of conduct that the court deciding the particular case felt should be “treated as” treason. It was the perfect instrument of oppression, being virtually whatever the authorities wanted it to be.[2]

                1. George,

                  I would think the US/International Treaty against Bio-weapons that deals with issues of the Nuremberg Code/Article 1 etc., seems like it would have to be an issue here.

                  Viva/Barnes are getting into some of the SC ‘s Friday oral arguments. I’m only 35 min’s in.

                  *************

                  Ep. 95: Another Sunday Night Stream – Viva & Barnes LIVE!
                  47,899 views
                  Streamed live 5 hours ago

                  1. Oops:

                    I would think the US/International Treaty against Bio-weapons that was said to deal with issues of the Nuremberg Code/Article 1 etc.,

    1. We’re all going to be in the thick of it soon it would seem. Just look over seas.

      Bill Filed In Washington Would Authorize ‘Strike Force’ To ‘Involuntarily Detain’ Unvaccinated Families: ‘They Have Already Set Up The Internment Camps’
      By Alicia Powe
      Published January 8, 2022 at 8:20pm
      628 Comments

      https://www.thegatewaypundit.com/2022/01/bill-filed-washington-authorize-strike-force-involuntarily-detain-unvaccinated-families-already-set-internment-camps/

  9. Daniel: final clarification (too much chocolate milk today). I thought you were saying that reverse discrimination as a viable CAUSE OF ACTION was illegal. My responses-not your original comment, were confusing. Part of the problem is that, despitr very current security software,my iPad is not allowing me to read what I wrote; neither will it post my comments under “Reply,” –this happened after ai respondec to jeffsilberman last week…

  10. In 13th-century England, Jay Inslee might have been convicted of “constructive” treason, that “…being virtually whatever the authorities wanted it to be [2].” Governor Jay Inslee, D-Washington, might have been convicted, drawn and quartered for the crime of challenging the authority of the Sovereign, in this case, the U.S. Constitution, or “constructive treason,” for abating and subverting the not qualified and, therefore, absolute 1st Amendment freedom of speech. Jay Inslee is a direct and mortal enemy of the United States, which most Americans will not realize and acknowledge until the final phase of the implementation of communism in America is complete and irrevocable.
    _________________________________________

    During the High Middle Ages, those in the Kingdom of England found guilty of treason were punished in a variety of ways, often including drawing and hanging. Throughout the 13th century, more severe penalties were recorded, such as disembowelling, burning, beheading, and quartering.

    – Wiki
    _____

    Constructive Treason

    The word “constructive” is one of the law’s most useful frauds. It implies substance where none exists. There can be constructive contracts, constructive trusts, constructive fraud, constructive intent, constructive possession, and constructive anything else the law chooses to baptize as such. “Constructive” in this sense means “treated as”. … Constructive treason wasn’t “real” treason but a vaguely defined, less potent category of conduct that the court deciding the particular case felt should be “treated as” treason. It was the perfect instrument of oppression, being virtually whatever the authorities wanted it to be.[2]

    – Wiki

  11. Daniel: (well, actually, court -ordered racial auotas are allowed (don’t remember case(s), which is why I said”some” in my original comment)

  12. Daniel: our messages are crossing each other, Yes, ues, I agree with you. I wrote a whole paper on Bakke, whoch I think got me into law school!

  13. Daniel:(upon cursory reading, I thought you were saying that the concept of “reverse discrimination” illegal. OK, all done. sorry..

  14. Wait.wait. wait. (I don’t know how to erase my comments) APOLOGIES, Daniel! I reread your comment and realize my misunderstanding of what you said. Please accept my apology regarding reverse discrimination.

  15. Daniel: (Yikes-third clarification…I know that YOU know this, but the Bakke decision (which upheld some racial quotas in admissions) allowed for the concept that anti-discrimination laws (including the civil rights act) prohibit discrimination based on “race” among other things. Thus, the concept of “reverse discriminstion” was cited as meritorious in several subsequent cases, like those involving firefighters,promotions, etc. (This is for those who do not jave time to read Bakke and sequela!)

    1. Lin, the Court has fudged the issue on reverse discrimination for decades. In Bakke there was no majority opinion. Powell, the swing vote, said that quotas were unlawful but race could be considered as a factor to promote what he considered to be a compelling state interest in “diversity”. Later, O’Connor wrote that using race in this way would be illegal in 25 years, but not yet. Reverse discrimination is now everywhere. What I wrote is that the Court should at long last declare it to be illegal, both under the Civil Rights Act of 1964 and the 14th amendment. Until they do it will continue and expand further, with enormous costs of the kind I mentioned.

    2. I think in a number of those cases the court applied or accepted a race conscious remedy involving quotas to undo proven specific past illegal discrimination. In other cases courts have held that in the absence of proven specific past illegal discrimination, race conscious remedies are unlawful, for example to remedy past societal discrimination in general.

      I think race conscious actions are always a mistake, and should be unlawful, even in the specific remedial context. It is always wrong to reward some members of a group because other members of that same group at an earlier time were hurt because they belonged to that group.

      I also disagree that diversity is a “compelling” state interest.

    3. “read Bakke and sequela”

      Lin, what happened afterward is most interesting. I never researched it myself, but might do so at another time. One should ask themselves what happened to Bakke and what happened to the affirmative action candidate that took his place?

      Bakke became a big success going to medical school at another time.
      The affirmative action individual that took his place was a disaster.

      That is what I was told, but I need to research it myself because my use of the word disaster was apparently too kind of a word.

      1. Sowell and others have criticised so-called affirmative action in college admissions because it “mismatches” students with colleges. Perfectly capable students who could do very well at good colleges are admitted instead to the very best colleges where they do poorly or fail.

        1. Daniel, that mismatch causes a lot of harm to those who supposedly benefited, and it causes damage to those who attained their status without affirmative action. One of my black professional friends who was brilliant wasn’t considered so by people that didn’t know him. Too many had affirmative action in the back of their minds. I am sure that hurt his career.

          Instead of having Bakke give his slot to an affirmative action candidate, he could have gone for a master’s in a related field. Perhaps a scholarship if he came from a deprived area. Then he could compete on a level playing field by being smarter than the rest. That changes perception.

          An example: I have always heard Jews make good doctors. One of the reasons why this was so was due to quotas. There was discrimination against Jews. Therefore, the medical schools put a cap on the number of Jews. But Jewish students with high academic standards were too plentiful, so Jews had to compete for the available spots, and only the best of the best were taken.

          Compart the two types of acceptance in the public’s mind—the best of the best vs. affirmative action. Common sense is what we need to make good decisions. The left lacks common sense.

          1. I agree that so-called affirmative action undermines the reputations of the best of the group it seeks to benefit, who would not need it. Clarence Thomas found this out when he was dismissed by big firms with whom he interviewed because they viewed him as having got into Yale Law School because of his race not his abilities. Personally, my first reaction when seeing a black appointment, hire or promotion is skepticism that competence was the main criterion. I do not believe I am alone in this. It is a very unfortunate situation.

            1. Daniel: While still in high school, I wrote a paper about the Bakke decision because the facts in that case served to implant in my mind–even at that young age–such a sense of unfairness. Later, as a young manager, I was sued for not hiring a young Black female (I did not hire her for reasons I will not state here). The sad reality is that I was looking for qualified minorities to hire…that experience was the impetus that sent me to law school in the end.

  17. Daniel at 10:39: I’m not sure you want to call reverse discrimination “illegal.” Remember that its first real acceptance as a valid concept was in SCOTUS’s Bakke decision, which involved a plaintiff white med school applicant with high aualifications who was passed over for a Black under the school’s affirmativr actionprogram..Of course, whites are generally not considered a “protected class” but declaring thst reversediscrimination is isillegal may send the wrong message to readers (but I understood what you meant-and yourcomment is overall trur)

  18. Inslee wanting to make lying by politicians illegal…..now that is joke….right?

    Except for the. natural disasters that it would cause…..I would pray the Almighty would send a Bolt of Lightning from the Heavens and strike every politician graveyard dead upon their telling a bold faced Lie.

    Utter catastrophe would occur if that same concept applied to so those claiming to be Journalists for those occasions the Media tells an out and out Lie.

    The residual heat from all that Lightning would certainly be a cause of global warming….even with the offset of so much less hot air emanating from Politicians and the Media pie holes.

    But…..we know the Left would object to such a notion and would accuse the Almighty of Censorship.

  19. Does Turley want us to believe that if Republicans yell fire in a crowded theater when there is no facts or proof of fire, it still should be considered protected free speech? Is it not reasonable to protect the public from harm, when those lies will harm the public.

    1. That stupid comment comes from an engine that can’t start.

      Be it be facts or gas, you are out of both.

      1. I have neither the time nor crayons to explain this to you. Besides, You want to remain a fool, because truth requires change.

    2. I live in Washington where this big dope is Governor. His laws are cruel to the people here especially children. We’ve been convinced our breath is toxic and now our speech is lies.

      1. Big Dope, you say. Who voted this communist idiot into office?
        _________________________________________________

        “[We gave you] a [restricted-vote] republic, if you can keep it.”

        – Ben Franklin
        ___________

        You couldn’t.

        Turnout in 1788 was 11.6%, by design. Never did the Founders intend for the “poor,” illegal aliens et al. to vote. No person who receives any form of check from the government, as pay or assistance, should ever vote. Public workers, dependents and parasites vote for more money, “free stuff,” and ever increasing pay. Who wouldn’t vote for that, for “free stuff” for themselves from the “deep pocketed” taxpayers?

    3. Inslee says there must be “knowledge of **potential** to create violence”. That is not the Supreme Court standard for action that makes free speech criminal speech. As Professor Turley points out in his post, 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.” Under Inslee’s proposed law, questioning elections (rather than calling for violence) would be treated as a crime based on a “potential for violence” standard, regardless of there is an actual threat of imminent violence. It should be clear that Inslee and the left are attempting to criminalize what the Supreme Court has ruled as free speech and that their purpose for doing so is to create a barrier for future claims of suspected election fraud.

    4. The lies that Republicans and Trump supporters have told to date are reprehensible but not unconstitutional FishWings. The lies they have told are not equivalent to yelling fire in a crowded theater. And before you make an unfounded assumptions, I am a progressive liberal who holds the traditional liberal/civil libertarian view on free speech. This is an area where I am deeply disappointed in many of my fellow liberals over the views they hold and the proposals they have suggested to limit free speech and/or punish it.

      1. Again and again democrats say trump lies without saying exactly what the lie is, and proving its a lie not just their opinion c

  20. You should read Darren’s op-ed. You fit somewhere between an Amoeba and a “person can be taught how to recite an outcome or answer but does not fully understand the underlying reason, process, or cause for the fact or event.”

    Be happy. You don’t know enough to have to worry about anything.

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