Would Inslee bill making it illegal to lie about election fraud survive a court challenge?

Jan 28, 2022, 1:19 PM | Updated: Jan 31, 2022, 9:47 am

Inslee election fraud...

Gov. Jay Inslee. (Office of the Governor)

(Office of the Governor)

State lawmakers heard testimony on Friday for a bill from Gov. Jay Inslee, which would make it a misdemeanor for elected leaders or candidates to spread unfounded allegations of election fraud. But could his proposal stand up to a court challenge?

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In a news release sent out shortly after his testimony in the state Legislature, Inslee detailed how the bill — sponsored by state Sen. David Frockt (D-Seattle) — was drafted in consultation with constitutional law scholars Laurence Tribe and Catherine Ross.

Tribe is a professor emeritus at Harvard University, having authored “American Constitutional Law” in 1978, which is acknowledged by many as a canonical work in the field. Despite admitting that he “can’t say with complete confidence” whether Gov. Inslee’s bill would survive a judicial challenge, Tribe expressed confidence that it “respects the texts and purposes of the First Amendment and the precedents construing it.”

“I can say that it represents at the very least a thoroughly sensible, responsible, and good faith effort to address a serious problem imperiling democracy,” Tribe detailed in Inslee’s release.

Catherine Ross  — whose work as a constitutional law professor at George Washington University focuses on the First Amendment — first became aware of the bill after her past work was quoted in a Washington Post story on Inslee’s proposal. The Post cited a 2017 paper from Ross that explained the scarcity of helpful judicial precedents directly related to “the constitutionality of campaign deception statutes.”

“But on reading this piece I agreed with the governor that these are exceptional times in which lies about the results of the last election pose a realistic threat,” she clarified in testimony delivered to the Washington State Legislature. “I thought Washington’s interests were so important I wanted this bill to be done right, and I reached out and offered to help. I consulted and helped craft the language which I do believe addresses the First Amendment problems.”

As the Washington Post points out, though, courts have also struck down laws attempting to criminalize false political speech in the past.

That includes a 2007 ruling from Washington state’s Supreme Court, which negated a law that had sought to prohibit candidates from lying about their opponents. Seven years later, a federal judge in Ohio struck down a law that had allowed the government to regulate and censor false political speech.

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Inslee’s bill seeks to account for that legal precedent by focusing on the U.S. Supreme Court’s 1969 Brandenburg v. Ohio decision, which established that any speech inciting “imminent lawless action” isn’t protected under the First Amendment. Using that standard, Inslee points to the Jan. 6 riot at the U.S. Capitol as proof that allowing election falsehoods to spread has the potential to directly incite lawless and harmful behavior.

“We cannot afford, and we should not have to endure, another insurrection like January 6, 2021,” Inslee testified on Friday. “But violent insurrection is not the only threat to democracy. This bill takes on all attempts to spur violence through election lies. Diminished acceptance of election results threatens our system of government and the people who serve.”

Others have warned that meeting the standard laid out in Brandenburg has traditionally proven to be a tall order. That was pointed out earlier this week by Lawfare, a national security blog that works in concert with the Brookings Institute.

“The bill would be ineffective because the Brandenburg standard is incredibly difficult to meet, and it is hard to conceive of many false election claims that would surpass this hurdle,” Lawfare’s Jeff Kosseff posited in a Tuesday story. “Although prosecutors would have trouble convicting people under this bill, it still raises substantial free speech concerns due to its chilling effect.”

The bill remains under consideration in the state Senate’s Government & Elections Committee.

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Would Inslee bill making it illegal to lie about election fraud survive a court challenge?