[EL] Inslee bill to make lying punishable

[Volokh, Eugene]

                So as best I can tell, the debate about lies and elections has dealt with at least several different kinds of claims – one might think of them as before, during, and after.

                1.  Before:  Several states ban lies in election campaigns, with the concern being defrauding voters into casting a vote based on false information.  Some appellate courts have upheld them, see In re Chmura (Mich. 2000) and State v. Davis (Ohio App. 1985) (both upholding such election lie statutes).  Somewhat more have struck them down, see Susan B. Anthony List v. Driehaus (6th Cir. 2016); 281 Care Comm. v. Arneson (8th Cir. 2014); Commonwealth v. Lucas (2015); and two Washington Supreme Court cases, 119 Vote No! Committee and Rickert.

                2.  During:  Some states, I believe, ban lies about the mechanics of voting – when, where, and how, with the concern being defrauding voters into not being able to cast a valid vote at all.  I know of no cases on the subject.

                3.  After:  The Inslee bill appears to be unusual in banning lies about election results, with the concern being essentially about speech that creates distrust, disapproval, and hostility to the duly elected government (and may therefore eventually lead to violence or rebellion).

                My take is:

                A.  Category 2 mechanics-of-voting laws are likely constitutional, partly because it is limited to specific, narrow, easily verifiable and largely uncontroversial information.  (I wrote about it at https://www.tabletmag.com/sections/news/articles/douglass-mackey-ricky-vaughn-memes-first-amendment.)

                B.  Category 3 wrongly-damages-trust-in-government laws are likely unconstitutional, because they are essentially seditious libel laws (and indeed the defenses of the Sedition Act of 1798 were couched precisely in such terms).  I wrote about this at https://reason.com/volokh/2022/01/10/seditious-libel-today-and-225-years-ago/ this morning.  They also apply beyond just narrow, easily verifiable claims (“Candidate X was registered by the Secretary of State as having 100 more votes than Candidate Y”) and turn to much more contestable claims (“Candidate X got 100 more valid votes than Candidate Y, judging under the right standards of validity”).

                C.  As to Category 1 lies-in-election-campaign laws, the matter is much more complex, as the caselaw reflects; my sense is that they are potentially so broad as to indeed pose real problems of skewed enforcement and an excessive chilling effect, but that’s a hard call.

                Eugene

From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf Of Stephanie F Singer
Sent: Monday, January 10, 2022 2:54 PM
To: John Tanner <john.k.tanner at gmail.com>
Cc: Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] Inslee bill to make lying punishable

Doesn’t that brief address a much larger category of speech? The starting question for the brief is “Can a state government criminalize political statements that are less than 100% truthful?” whereas the Inslee proposal seems to be limited to statements about election results. In any world where the category “political statements” does not include all statements, some statements have to be outside the category.  If the set of “non-political statements” contains anything at all, surely it should contain a simple statement of a fact (e.g., "Candidate X got more votes than Candidate Y") sourced from a designated authority (a Board of Elections).

Are there any legal restrictions in any states for statements like “Democrats vote on Tuesday; Republicans vote on Wednesday?” Have there been? What’s the legal history of attempts to ban such speech?


On Jan 8, 2022, at 5:52 PM, John Tanner <john.k.tanner at gmail.com<mailto:john.k.tanner at gmail.com>> wrote:


 This reminds me of my favorite legal brief of all time.  https://www.cato.org/sites/cato.org/files/pubs/pdf/sba-list-merits-filed-brief.pdf

Sent from my iPhone


-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20220110/f29d5301/attachment.html>