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.
This would seem to require an honest inquiry into whether or not there was election fraud to establish whether or not someone was lying about it. After all, truth would be a complete defense to these kind of charges. Inslee had best watch out what he wishes for. This would seem to necessitate full forensic auditing of elections, something the likes of Inslee have resisted and rejected. He may end up being hoisted by his own petard.
Turley says:
“The same concerns were raised this week after Washington Gov. Jay Inslee called for the criminalization of “lies” about election results.”
It’s peculiar that government privileges lying in the court of public opinion but forbids it in a court of law. In the search for truth in the courtroom, society must criminalize lies. Outside of court, however, I agree with Turley that liars never should be incarcerated legally but punished *morally* by being made persona non grata, shamed, shunned, ostracized and even boycotted.
“however, I agree with Turley that liars never should be incarcerated legally but punished *morally* by being made persona non grata, shamed, shunned, ostracized and even boycotted.”
Not a bad comment. We should start with Svelaz, stupid Anonymous and you.
Inslee and the last two Washington State governors were likely elected by fraud, as were no less than 3 Seattle city council seats. The fraud was so obvious that only a crooked MSM would not call out votes mysteriously arriving as long as 12 days after the election, with no scrutiny whatsoever.
Inslee is easily the dumbest governor in the nation, a total ill-educated loon, drunk with power, as effective as a demented president at rational thought.
(from lin)
S.Meye at 7:52 p.m re: Bakke Yes, precisely! That is why I used the word sequela, as in untoward effect/consequences! Good for you!
“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.”
Hate to tell you JT, that Democratic party is long gone. I know you are decent and mean well, but the woke crowd considers you a “nazi” too and you’re previous progressiveism is of no use.
And I’m just waiting for some s@@tlib to explain why this doesn’t violate the First Amendment.
antonio
Bill Clinton and Walter Mondale would be considered “nazis” by the woke crowd insiders.
You can’t yell FIRE in a crowded theater, so free speech does have its limits.
Nitwits should be allowed to cast a ballot. Can’t go get a voter ID? Too lazy.
Thank you so much. Living under this selected dictator is tiring…No way am I going to be jabbed with an experimental gene altering therapy injection no am I going to take the Let’s Go Brandon off my Van. We can’t even attempt to recall INslee unless our AG agrees to the petition! This has been a stolen state since the 808’s.
They also want to federalize the elections.
Hi Lynn,
You said; “This has been a stolen state since the 80s.” I am curious, was it the use of mail in ballots that ‘stole the state’ or were there additional factors?
Among the many precious freedoms enshrined in the Constitution, by necessity you’ll not find the freedom to subvert the Constitution.
Failing to accept election defeat after all legal court challenges have been exhausted is a great affront to the Constitution, and an audacious attack on its authority. It is reckless, and deserves criminalization.
To focus on the “lying” (deceitful communication) dimension of it misses the greater antecedent, the decision to not accept defeat at the end of the process, or to otherwise dismiss the process as illegitimate.
JT is missing the big picture, blinded by freedom of speech. Freedom of speech is a right conferred on those who willingly abide by its blueprint for electing leaders. There is no freedom to use speech to subvert its greater authorities and endurance.
There is a right to use freedom of speech to subvert government.
Pushing the Russian collusion narrative was ethically reckless. And yet, merely saying that “Trump colluded with the Russians to steal the 2016 election” is protected speech.
Filing false affidavits and fabricating evidence, of course, is beyond the protections of the Constitution.
MTE,
”
Filing false affidavits and fabricating evidence, of course, is beyond the protections of the Constitution.”
But protected by the FBI and DOJ.
“Trump colluded with the Russians to steal the 2016 election” is a patent, demonstrable false statement, and actionable defamation which has effected damages.
Freedom of speech is absolute and fraught with peril.
One is wise to exercise discretion.
“Freedom of speech is” an inalienable right recognized by the Constitution.
There, fixed it for you.
“. . a right conferred on those who willingly abide . . .”
Hogwash.
There is no such thing as “conferring” rights. Rights are not granted or bestowed. A government either *recognizes* and protects them, or it does not.
Your “willingly abide” garbage: Rights do not come with an IOU to the government.
A politician who wants to criminalize lyin’… by politicians? Hmmm. There’s a catch-22 in there somewhere, I’m sure.
Still, it might be worthwhile — include “broken” campaign “promises” and I’m all for it.