[EL] Inslee bill to make lying punishable

[Doug Spencer]

With respect to Eugene's Category 1—regulating speech before an election—I
agree that "the matter is complex" and that these laws are "potentially so
broad as to indeed pose real problems." But there are potential limiting
principles, and I think some lessons can be drawn from cases regulating
political speech within physical buffer zones, or so a colleague and I
argue in a forthcoming article *Temporal Buffer Zones*
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3805949>. In addition
to concerns about defrauded voters and election integrity, the Supreme
Court has identified an additional value that justifies some regulation of
political speech: the solemnity of the act of voting. As Chief Justice
Roberts writes for the Court in *Minnesota Voter Alliance v. Mansky*,
"casting a vote is a weighty civic act, akin to a jury's return of a
verdict, or a representative's vote on a piece of legislation. It is a time
for choosing, not campaigning." In other words, at some point during an
election cycle citizens must take off their discussion-and-debate hat and
put on their voting hat. This distinction may warrant narrow restrictions
on speech immediately before an election, whether or not those restrictions
are related to lies.

[image: image.png]





On Mon, Jan 10, 2022 at 4:25 PM Volokh, Eugene <VOLOKH at law.ucla.edu> wrote:

>                 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> 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
>
>
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> https://department-lists.uci.edu/mailman/listinfo/law-election
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20220110/315156b1/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image.png
Type: image/png
Size: 67035 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20220110/315156b1/attachment.png>