Governor Inslee Wants To Jail Politicians Who Lie? What Could Possibly Go Wrong?

from the besides-everything dept

I know that people who identify tribally as Democrats or Republicans often like to accuse the other team of being especially censorial, but the unfortunate fact is that elected officials in both parties seem equally interested in using the power of the state to take away 1st Amendment rights. For every misguided effort by Florida, Texas, or Georgia to attack the 1st Amendment rights of websites, we see a Colorado or New York going in the other direction.

For every Republican bill in Congress demanding censorship of some types of content, you have Democrats seeking to censor other kinds of content. You can argue that the reasons behind one side’s wish to censor is more pure than the other side’s, but that’s not how the 1st Amendment works — and anyone who doesn’t realize how any of these laws would be easily (and widely) abused by the other side has not paid any attention to the history of how speech suppressive laws work.

Entering into this fray, we have Washington state Governor Jay Inslee, who, at the beginning of the year, announced plans for a law to criminalize “false speech” about elections.

?Soon, legislation will be introduced in the state House and Senate that would make it a gross misdemeanor for candidates and elected officials to knowingly lie about elections. The proposed law is narrowly tailored to capture only those false statements that are made for the purpose of undermining the election process or results and is further limited to lies that are likely to incite or cause lawlessness,” Inslee said.

He claimed, dubiously, that such a law is okay under the Brandenburg test, that says speech that is directed to inciting or producing imminent lawless action and is likely to incite or produce such action can be restricted. But, that’s a very stringent test, and lies about elections are almost never going to rise to that standard.

The actual bill appears to be wildly unconstitutional, even as it tries to write itself into the Brandenburg standard:

Every elected official and candidate who has filed for public office under chapter 29A.24 RCW and who knowingly makes false statements or claims regarding the election process or election results, which statements or claims are made for the purpose of undermining the election process or election results and are directed to inciting or producing imminent lawless action and such statements or claims produce such action, related to any election conducted in the state, is guilty of a gross misdemeanor punishable under RCW 9A.20.021 and, if convicted, immediately forfeits the elected office.

This is already problematic on multiple levels. If the speech already meets the Brandenburg test, then it’s unclear why a new law is needed. But, furthermore, how do you distinguish “undermining the election process” from… engaging in “get out the vote” campaigns or trying to get people not to vote. The definitions don’t help much here, as deterring a voter from voting freely is included as “undermining the election process” but is encouraging a voter to vote one way — or even just to stay home and not vote — actually “undermining the election process” or is it just a standard part of electioneering?

Indeed, such a law would almost certainly be widely and dangerously abused by those in power. An awful lot of politicians (and just partisans in general) will always claim that folks on the other side are “lying about elections.” Sometimes they are. Sometimes they misspeak. Sometimes they mislead. Sometimes they say things out of context. Sometimes they exaggerate. But that shouldn’t result in potential jail time.

But, under this law, you can see that opponents of politicians on both sides of the political debate would almost certainly bring cases under this law claiming random statements “undermine the election process” in an attempt to (1) waste time, resources, money, and attention of candidates, and (2) in the hope that maybe they win one and force that candidate to forfeit elected office.

And that’s not even touching on the simple fact that political speech is the most important speech to be protected, and anything deliberately criminalizing political speech is an incredibly dangerous decision.

As more and more people have pointed out just how unconstitutional this is, rather than admit the problems of the bill, Inslee is doubling down. He recently defended this plan with a bunch of nonsense. His office highlights that a couple of constitutional law professors have looked over the bill and kinda shrugged and said “maybe it doesn’t violate the 1st Amendment?” But when your strongest supporting comment — from notoriously partisan law professor Laurence Tribe — starts out with this giant caveat:

I can’t say with complete confidence that the Governor’s elections/democracy bill will in the end survive all judicial challenges…

Then perhaps it should be a sign that your bill has serious problems.

Inslee’s speech in support of the bill is not just ridiculous, but it’s simply astoundingly ignorant of how his own political enemies would turn this bill around on him:

Politicians are not above anyone else who would incite violence by knowingly, recklessly, or maliciously spreading lies about lawfully run elections.

The Big Lie, that we can?t trust our democracy to count the votes, has become a weapon. It?s being used all over America ? including our state ? and it will again incite violence. There are many examples where the law punishes lying on official documents or under oath ? and I believe some standard should apply here.

Using their power or popularity, they lie ? whether knowingly, recklessly or maliciously ? to foment violence against others and against the foundations of American democracy. By asserting a right to violently subvert democracy, they assert the right to overturn the popular will determined by elections, if that?s the only way they think they can achieve power. Their intent is to harm.

Lots of 1st Amendment lawyers have looked at the various aspects of the Big Lie and concluded that it would be nearly impossible to get any politician on claims that they incited imminent violence — even those who spoke at the rally on January 6th right before a mob of clueless, ignorant insurrectionists besieged the Capitol.

But, just put this law in the hands of the proponents of the Big Lie and think how this plays out. Those people have no compunction at all about insisting that those who say that Biden clearly and easily won the election, that there was no meaningful evidence of fraud, and that our elections were some of the most secure ever… that they are the ones lying about an election and that they are the ones inciting violence.

In other words, this would become a tool for grievances by anyone in politics against opponents, whether based in reality or in delusions.

The 1st Amendment prohibits these kinds of laws for that very reason.

So many of these laws seem to be written in the naïve belief that political opponents will never use those laws or never be in power themselves. And that is a very dangerous assumption, which historically never seems to hold up.

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Comments on “Governor Inslee Wants To Jail Politicians Who Lie? What Could Possibly Go Wrong?”

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Stephen T. Stone (profile) says:

this would become a tool for grievances by anyone in politics against opponents, whether based in reality or in delusions

Which means of course it would be (ab)used by Republicans as soon as they possibly could.

…what? Don’t give me that look. Republican politics these days, far moreso than Democrat politics, are practically all about airing and “fixing” conservative grievances.

Anonymous Coward says:

I wonder just who gets to decide what "truth" is? Can’t know if it’s false if you don’t have a clearly defined truth. I’m fond of Carl Bernstein’s "best obtainable version of the truth," which acknowledges that truth changes over time. Today’s truth may become tomorrow’s lie.

We’d have a lot fewer problems if we just required an IQ test of anyone running for office. We don’t need to set a high bar. A minimum IQ of 100, average, would eliminate a whole lot of sitting politicians.

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Stephen T. Stone (profile) says:

Re:

We’d have a lot fewer problems if we just required an IQ test of anyone running for office.

No, we’d only have a different set of problems. IQ is a horrible way to test for “intelligence” anyway⁠—after all, who gets to decide what “intelligent” means in that (or any other) context, and how does that weigh against the capability of serving in public office?

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TFG says:

Re: Re: Re:

Found what looks to be a pretty good article on the subject:

https://theconversation.com/the-iq-test-wars-why-screening-for-intelligence-is-still-so-controversial-81428

In addition to what Stephen said, it’s worth noting that the inventor of the tests, considered them inadequate:

The first of these tests was developed by French psychologist Alfred Binet, who was commissioned by the French government to identify students who would face the most difficulty in school. The resulting 1905 Binet-Simon Scale became the basis for modern IQ testing. Ironically, Binet actually thought that IQ tests were inadequate measures for intelligence, pointing to the test’s inability to properly measure creativity or emotional intelligence.

That bolded section is hugely important. What’s termed "emotional intelligence" here includes, I believe, emotional maturity and empathy, which is definitely something that leaders should have.

Also note that IQ tests were designed around testing large populations, finding a median, and identifying those that are in need of assistance in a school setting. The original purpose of them was a way to find and come alongside individuals who were being left to fall through the cracks of an educational system.

Applying that willy nilly to a bunch of other things, and especially using it as a gatekeeping mechanism, seems flawed to me.

(One of the good things to come out of IQ tests was their use in an economic impact study to drive home how leaded gasoline was a horrible idea in demonstrating the effect of lead poisoning on the learning abilities of children – which is arguably in keeping with the original intent of the tests.)

James Burkhardt (profile) says:

Re: Re: Re: Re:

The basis for IQ testing is a type of statistical analysis called factor analysis, and it is this analysis that supposedly identifies the Intelligence Quotient, a theoretical underlying factor of all forms of intelligence that is unique to the individual. To this end Alfred Binet may have had noble intent, though support for his conclusions was wanting.

Unfortunately, it was immediately picked up by the eugenics movement as a scientific way of finding those with innate intellegence, that they ascribed to being innately better ‘stock’, for lack of a better word. They jumped to ascribing it to better genetics when DNA was discovered. This is why so many people think of being smart as something you are, not something you train like you train a voice or skill with a paintbrush. Everything we think about IQ testing in modern times comes from eugenicists. Which really should be enough to suggest how bad the idea really is.

James Burkhardt (profile) says:

Re: here's a dumb suggestion

Like how it requires a person work a well-paid job? Incomes are so suppressed, 50% of America don’t earn enough to pay taxes (wages are so low about half of America either doesn’t pay income taxes or gets a full refund). A large issue with most politicians is they are monied and connected, separating them from most constituents.

Your plan literally locks in the monied and wealthy as the only option for politicians, which is going to have to opposite of a moderating effect on their wild ideas.

cpt kangarooski says:

If the speech already meets the Brandenburg test, then it’s unclear why a new law is needed.

Brandenburg isn’t self-executing.

That is, all Brandenburg says is that certain speech is not protected by the First Amendment. But that doesn’t itself make it unlawful speech. There also would need to be a law against it. This is that law. And Brandenburg says that law is not unconstitutional (assuming that that is the case).

This isn’t to defend it or anything, just that’s why they would need to pass something to accomplish their goal, if indeed it can be accomplished.

Anonymous Coward says:

I am not allowed to lie under oath. I’m not allowed to lie on my taxes. If I’m a licensed professional, I’m not allowed to lie in the execution of that activity either. Basically if I’m interacting with a government official in any way there is probably an existing rule that says I’m not supposed to lie and probably has legal penalties associated if I do. So why is it so hard to turn it around and say when people in our government, or who want to be in our government, lie to us there should be penalties? If we have to be honest, so should they. I’m not saying this is the right bill or it isn’t unconstitutional as written but to flat say it would be too hard for politicians to have any penalty for dishonesty is giving up on having any ethics in government.

nasch (profile) says:

Re: Re:

I’m not saying this is the right bill or it isn’t unconstitutional as written but to flat say it would be too hard for politicians to have any penalty for dishonesty is giving up on having any ethics in government.

It would be nearly impossible to craft a bill that meaningfully punishes politicians for lying and also stays within the bounds of the first amendment. That’s one of the consequences of this freedom that we have decided to have. People, including politicians, can and do abuse it.

Anonymous Coward says:

Compare and contrast

As a Washington resident for a few decades, I find it a bit odd that Governor Inslee would draw the line at lies regarding the outcome of elections or the election process itself. After all, our courts decided that politicians need not tell the truth in the material they submit for publication in the voter pamphlets sent out before the election. Those pamphlets explain what the measures up for a vote are about, and provide background about, and statements from, the candidates for each office.

So you can get in trouble for lying about the outcome of an election, but not for defrauding the electorate about a candidate or measure?

Anonymous Coward says:

Compare and contrast

As a Washington resident for a few decades, I find it a bit odd that Governor Inslee would draw the line at lies regarding the outcome of elections or the election process itself. After all, our courts decided that politicians need not tell the truth in the material they submit for publication in the voter pamphlets sent out before the election. Those pamphlets explain what the measures up for a vote are about, and provide background about, and statements from, the candidates for each office.

So you can get in trouble for lying about the outcome of an election, but not for defrauding the electorate about a candidate or measure?

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This comment has been deemed insightful by the community.
Mike Masnick (profile) says:

Re: The both sides fallacy

The "both sides fallacy" is when you attempt to minimize one group’s actions by saying others do it too. I’m not doing that. I’m pointing out, accurately, that there are both Democrats and Republicans shitting on the 1st Amendment. Because there are.

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That One Guy (profile) says:

'It's fine, they'd never have that power...'

So many of these laws seem to be written in the naïve belief that political opponents will never use those laws or never be in power themselves. And that is a very dangerous assumption, which historically never seems to hold up.

You’d think someone who’s been alive during the past presidency would understand why criminalizing ‘lies’ is a huge pitfall that will be weaponized… they either have a really short memory or incredibly naivety I guess.

The first test any proposed or even considered law should be run through should always be ‘Would I feel comfortable if my absolute worst enemy were to have the ability to make use of my suggestion/law to the fullest possible(so not just what you plan on using it for but what it could be used for) extent the second it’s put into the books?’

Doesn’t matter how unlikely you think that possibility is, how sure you are that whoever that is would never have that power, if you can’t confidently and with no hesitation answer ‘yes’ to that question then it’s a bad law/idea.

John85851 (profile) says:

What about "just asking questions"

Would it be considered a lie if Trump said "I heard that someone reported that someone read that Obama was born in Kenya. Despite all the evidence to the contrary, I’m just asking the question of whether it’s true or not."

Obviously, it’s a lie, but the way politicians phrase things could make it very easy for them to lie and get away with it.
Plus, if politicians write the law then they’ll write in exceptions.

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Jason says:

Insleeeeeee

Dildo Inslee, we are sick of your dictatorship over Washington State residents. We are sick of your fraud and corruption. And we are definitely done with your UNSCIENTIFIC SCARE TACTIC KEEPING MASKS ON OUR KIDS. The only science you follow is political science. Our children are suffering mentally and physically and the only retribution for a tyrant like you is the short side of a rope. I hope justice is served swiftly on a very deserving piece of sh it like you and they broadcast your hanging for all of us peons to see you dip sh it

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