[EL] Inslee bill to make lying punishable
Douglas Johnson
djohnson at ndcresearch.com
Mon Jan 10 22:40:25 PST 2022
Technical point: the "temporal limits" are going to have to be so tight
that there's no way one could conduct a judicial process prior to election
day, much less the start of voting (now that so many voters cast ballots
weeks before election day).
Policy point: Can someone do a quick check of how many times the Snopes,
Washington Post and other "fact checkers" have had to print corrections /
retractions? I am guessing that even counting just at the major media fact
checkers that number is over 50 times (but admittedly that's just a wild
guess).
Now imagine if one week before election day the "fact checker" ruled a
candidate lied, and two weeks after the election the "fact checker" said
"whoops, sorry about that."
Remember, there's no time for an appeals process in an election. And that
first headline saying "Government Agency rules Candidate X Lied" is all the
candidate filing the complaint really needs / wants anyways.
- Doug
On Mon, Jan 10, 2022 at 10:12 PM Doug Spencer <dougspencer at gmail.com> wrote:
> 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
>>
>>
>>
>>
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>
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--
Douglas Johnson
National Demographics Corporation
djohnson at NDCresearch.com
phone 310-200-2058
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