Washington Gov. Jay Inslee (D) announced Friday that he wants to outlaw lying about elections.
What are the details?
Inslee announced Thursday forthcoming legislation “that would outlaw attempts by candidates and elected officials to spread lies about free and fair elections when it has the likelihood to stoke violence.”
The announcement was made on the one-year anniversary of the Jan. 6 riots at the United States Capitol, an event Inslee cited in a statement.
“January 6 is a reminder not only of the insurrection that happened one year ago, but that there is an ongoing coup attempt by candidates and elected officials to overturn our democracy,” Inslee said. “They are willing to do this by provoking violence, and today I proposed we do something about that in Washington.”
The Democratic governor explained the forthcoming legislation “would make it a gross misdemeanor for candidates and elected officials to knowingly lie about elections.” In Washington, a gross misdemeanor is punishable by a fine of up to $5,000 and up to 364 days of confinement in the county jail, the Seattle Times explained.
Inslee claimed 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.” However, Inslee failed to address what safeguards the law would contain to prevent gross abuses of power by the state government.
Inslee reportedly believes the law would be constitutional because it would require “knowledge that there’s potential to create violence” by the dissemination of an alleged lie,” the Seattle Times reported.
Would the law pass constitutional muster?
Constitutional scholar Jonathan Turley, a self-described “liberal,” explained the law that Inslee is proposing would “be dangerously and flagrantly unconstitutional.”
Citing United States v. Alvarez — a 2012 Supreme Court case that ruled unconstitutional a federal law that criminalized lying about military awards — Turley explained the highest court in the land has already decided “that it is unconstitutional to criminalize lies.”
Indeed, the Seattle Times also noted that “the Washington State Supreme Court has in the past rejected efforts to ban lies by political candidates.”
Turley also debunked Inslee’s assertion that his proposal would be legal via Brandenburg v. Ohio. Inslee claimed that 1969 Supreme Court case determined that “speech can be limited where it is likely to incite lawlessness. However, Turley explained the case actually determined 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 summary, Turley said Inslee’s law “would be ripe for abuse and would create a chilling effect that would be positively glacial.”
“Such a law would threaten political speech and create a chilling effect for those who want to raise such concerns in contested elections,” Turley explained.