Tell California Assembly Not To Ignore The First Amendment As It Tries To Ban Fake News

from the simply-unconstitutional dept

Just last week, we wrote about a fairly insane bill up for consideration in the California Assembly. AB-1104 would effectively make it illegal to post or share any "false or deceptive statement designed to influence" an election. As we noted at the time, this is about as unconstitutional as you could possibly imagine. Again, here's the text, as put forth by Assemblymember Ed Chau:

It is unlawful for a person to knowingly and willingly make, publish or circulate on an Internet Web site, or cause to be made, published, or circulated in any writing posted on an Internet Web site, a false or deceptive statement designed to influence the vote on either of the following:

(a) Any issue submitted to voters at an election.
(b) Any candidate for election to public office.

Yes, merely posting or sharing something that turns out to be wrong or "deceptive" related to anyone or any issue related to an election could violate the law. That's... not how the First Amendment works. And this would be an absolute free speech nightmare.

Chau, somewhat astoundingly, actually is a lawyer who ran his own law practice. I'm now curious if the Southwestern University School of Law doesn't teach its students about the basics of the First Amendment.

Rather than everyone laughing and this bill dying as soon as it was introduced, the California Assembly's Committee on Privacy and Consumer Affairs (which Chau chairs) is set to consider this bill today.

In case you don't understand just how bad this is, here's EFF's description:

American political speech dating back as far as the John Adams-Thomas Jefferson rivalry has involved unfair smears, half and stretched truths, and even outright lies. During the 2016 campaign alone, PolitiFact ranked 202 statements made by President Donald Trump as mostly false or false statements and 63 “Pants on Fire” statements. Hillary Cllinton made 69 statements ranked mostly false or false and seven as “Pants on Fire.”

This bill will fuel a chaotic free-for-all of mudslinging with candidates and others being accused of crimes at the slightest hint of hyberbole, exaggeration, poetic license, or common error. While those accusations may not ultimately hold up, politically motivated prosecutions—or the threat of such—may harm democracy more than if the issue had just been left alone. Furthermore, A.B. 1104 makes no exception for satire and parody, leaving The Onion and Saturday Night Live open to accusations of illegal content. Nor does it exempt news organizations who quote deceptive statements made by politicians in their online reporting—even if their reporting is meant to debunk those claims. And what of everyday citizens who are duped by misleading materials: if 1,000 Californians retweet an incorrect statement by a presidential candidate, have they all broken the law? 

At a time when political leaders are promoting “alternative facts” and branding unflattering reporting as “fake news,” we don’t think it’s a good idea to give the government more power to punish speech.

Because the California Assembly is considering this bill today, EFF has also set up an action center making it easy to tweet at California Assemblymembers, to let them know just how bad this censorship law would be. Please check it out, especially if you live in California.


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  • identicon
    Anonymous Coward, 28 Mar 2017 @ 8:30am

    why not?

    "That's... not how the First Amendment works."

    People think that is exactly how the Second Works.

    When you are okay with twisting any amendment, you are okay with twisting EVERY amendment.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Mar 2017 @ 8:36am

      Re: why not?

      Second, and the Fourth, and the Fifth, and the...

      reply to this | link to this | view in chronology ]

    • identicon
      Thad, 28 Mar 2017 @ 9:48am

      Re: why not?

      People think that is exactly how the Second Works.

      I'd ask exactly how "merely posting or sharing something that turns out to be wrong or "deceptive" related to anyone or any issue related to an election" has anything at all to do with the Second Amendment, but...it really, really doesn't, you're just trying to derail the thread.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 28 Mar 2017 @ 12:30pm

        Re: Re: why not?

        Nice try, but it's not the "merely posting or sharing something that turns out to be wrong or "deceptive" related to anyone or any issue related to an election" part, but the "The constitution only applies to what we feel like" attitude that the commenter was pointing out.

        reply to this | link to this | view in chronology ]

  • icon
    JonC (profile), 28 Mar 2017 @ 8:31am

    Does this law contain an exception for statements made during election campaigns? If not, I don't see how a single law maker could possibly support it.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 28 Mar 2017 @ 8:44am

      Re:

      An official exception? Almost certainly not. However, given the silk-glove treatment politicians tend to receive for pretty much anything they do I think the supporters of the law are fairly safe to assume that it won't apply to them and theirs no matter what they say.

      A regular citizen spreading 'fake news' is a criminal, deliberately harming democracy by trying to poison the well of public discourse with false statements.

      A politician on the other hand merely misspoke, or didn't actually mean what they said and was mistaken, and hey, how unfair would it be to go after someone for a mistake, something everyone does?

      reply to this | link to this | view in chronology ]

  • icon
    fjeske67 (profile), 28 Mar 2017 @ 8:32am

    This proposed law is perfect!

    It'll allow us to put every lying politician behind bars where they belong!

    reply to this | link to this | view in chronology ]

    • identicon
      GooseOrGander, 28 Mar 2017 @ 9:24am

      Re: This proposed law is perfect!

      Think of it like the movie the purge.

      A couple of times a century, this type of law SHOULD be enacted, long enough to help remove captured politicians who lie their way into office continue doing so while 'representing' voters.

      Think about technology, in a dozen or so years technology will be able to be used on politician's running for office that exposes their lying on the campaign trail or while in office, until, this law makes sense. /not sarcasm

      reply to this | link to this | view in chronology ]

  • icon
    TechDescartes (profile), 28 Mar 2017 @ 9:31am

    Bye-Partisan

    Furthermore, A.B. 1104 makes no exception for satire and parody, leaving The Onion and Saturday Night Live open to accusations of illegal content.

    So Chau and Trump have found common ground. Sad.

    reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 28 Mar 2017 @ 11:53am

    internet

    Internet, internet, internet, internet..................................

    Nothing about TV, Radio, Newspapers, Magazines, Comic books, Milk cartons, Side of Cars, buses, Subways, Trains,.........

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Mar 2017 @ 2:10pm

      Re: internet

      Of course not, the Internet is the prime person to person communication channel with a wide reach, while the other have small reach for an individuals, or are controlled by corporations.

      reply to this | link to this | view in chronology ]

      • icon
        ECA (profile), 28 Mar 2017 @ 5:55pm

        Re: Re: internet

        OF COURSE..
        The internet is the NEXT Information supply..
        News papers USED to print NEWS..then Comments, then BS..
        TV used to do news, then comments, then BS..

        Part of this is the idea of HOW do you hide the truth..
        BURY IT IN BS..Bury it in Comments, Bury it with Lies..

        This came around when politicians found out that OTHER countries have BETTER USA news then the USA does..

        reply to this | link to this | view in chronology ]

  • icon
    btr1701 (profile), 28 Mar 2017 @ 12:32pm

    Law

    Doesn't really matter if this bill passes or not, because even if it becomes law, it's so patently unconstitutional, it won't even survive summary judgment in federal court before it's overturned.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 28 Mar 2017 @ 3:07pm

      Re: Law

      Perhaps, but how many people who simply cannot afford to fight back will be silenced before it's killed off? Even a blatantly unconstitutional law like this still has the potential to cause damage so long as it's wielded against those without the means to challenge it in court.

      Even worse, it doesn't even have to be used to cause damage, simply the threat will almost certainly be enough to keep people from speaking, whether their own speech or repeating what someone else has said, for fear of being dragged to court and having to deal with that mess.

      reply to this | link to this | view in chronology ]

  • icon
    compujas (profile), 28 Mar 2017 @ 12:54pm

    It feels like California and the current administration are in a constant battle to one-up each other with unconstitutional stupidity from opposite ends of the spectrum.

    reply to this | link to this | view in chronology ]

  • icon
    freedomfan (profile), 28 Mar 2017 @ 2:59pm

    Does the bill's author know...

    Does Ed Chau (D-Monterey Park), the bill's author know that his bill runs afoul of the 1st amendment and he just does not care, is he cynically just posturing, or is he woefully ignorant of the free speech issue?

    For those who don't know assemblymember Chau is an attorney and ran a law firm for some time before his election to the legislature. So, draw any conclusions with that in mind.

    reply to this | link to this | view in chronology ]

  • identicon
    Dace, 28 Mar 2017 @ 4:49pm

    Update from the link...
    ""We won!
    A.B. 1104 was pulled and will not be heard in committee today. Stay tuned""

    reply to this | link to this | view in chronology ]

  • icon
    Eldakka (profile), 28 Mar 2017 @ 5:16pm

    knowingly

    Yes, merely posting or sharing something that turns out to be wrong or "deceptive" related to anyone or any issue related to an election could violate the law.

    IANAL, but I don't think that is correct.

    It is unlawful for a person to knowingly and willingly make, publish or circulate on an Internet Web site, or cause to be made, published, or circulated in any writing posted on an Internet Web site, a false or deceptive statement...

    I read it as only applying if the poster/sharer/circulator knows it is false or deceptive.

    If, for example, the NYT publishes a story, say "Trump caught in oval office, pants down, bent over desk with National Security Advisor's tongue in his ass", and you share it because it came from the NYT, and you have a good faith belief that the NYT is a reputable news source, and it later turns out to be false, then you wouldn't have knowingly shared a false story.

    Of course, it's still a bad law.

    reply to this | link to this | view in chronology ]

  • identicon
    STEVEN LEWIS, 29 Mar 2017 @ 7:37pm

    So, that would include?

    Every mainstream media outlet! Who decides? I sure hope it's not the mom and pop shop called Snopes. The commies are showing their arses. Truth is the new hate speech. Who's behind this push; ADL, SPLC, AJC, Simon Wiesenthal Center and the tribe's list goes on and on and on.

    reply to this | link to this | view in chronology ]


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