By BRETT DAVIS
THE CENTER SQUARE
(The Center Square) – Washington state Gov. Jay Inslee spoke out in support of a bill that would make it a crime for politicians to knowingly lie about election results if those claims result in violence.
Senate Bill 5843 would make it a gross misdemeanor for public officials and candidates to purposely spread misinformation about election results in the state. Punishments would include a maximum fine of $5,000, up to 364 days in jail, and removal from office upon conviction.
“I think after January 6th we have to ask this question: Do politicians think they have the right to foment violence and degrade our democracy by knowingly lying about election results?” Gov. Inslee asked Friday morning in speaking virtually before the Senate State Government and Elections Committee.
Gov. Inslee then emphatically answered his own question: “No, they do not.”
The governor proposed the bill earlier this month, citing the Jan. 6, 2021 breaching of the U.S. Capitol by protesters disrupting the joint session of Congress assembled to count electoral votes that would formalize President Joe Biden’s victory over former President Donald Trump.
That same day, a group breached the gate of Gov. Inslee’s residence in the state capital of Olympia, prompting security officials to rush the governor to a safe room.
“Politicians are not above anyone else who would incite violence by knowingly, recklessly, or maliciously spreading lies about lawfully-run elections,” Gov. Inslee said.
Opponents of the bill argue it runs afoul of the First Amendment’s right to free speech, but Gov. Inslee told the committee his staff worked with legal scholars to produce a bill that does not imperil the Constitution’s free speech guarantee.
“I think this bill is really pro-democracy, in part because it is neutral,” he explained. “It applies to every politician, regardless of your party and is very carefully written to protect the First Amendment.”
Those legal scholars, Gov. Inslee said, include Laurence Tribe, professor emeritus of constitutional law at Harvard Law School, and Catherine Ross, constitutional law professor at George Washington University Law School. She testified before the committee in support of the bill.
Dr. Ross, author of the recent book “A Right to Lie? Presidents, Other Liars, and the First Amendment,” told the committee “the speech clause of the First Amendment presents a virtually insuperable obstacle to regulations aimed at preventing lies in political campaigns even when we use the narrowest definition of lies – that is, verifiable, factual falsehoods.”
Nevertheless, citing the fact election lies pose a threat to the country in these “exceptional times,” Dr. Ross thinks the effort to pass the law is worthwhile and might even hold up under judicial scrutiny.
“There is no way to know what will happen when this is challenged in court, assuming it is challenged in court, because this bill treads a lot of fresh territory in trying to evade all of the obstacles,” she said. “But it’s exceedingly carefully crafted. I think it has a real shot of surviving.”
HB 5843 includes a severability clause, meaning if one or more elements of the bill are found unconstitutional, the other elements would still be valid as state law.
The bill’s sponsor, Sen. David Frockt, D-Seattle, said it is written in keeping with key free speech rulings. He specifically mentioned the U.S. Supreme Court’s 1969 decision in Brandenburg v. Ohio in which the justices ruled the government can suppress speech that is designed to produce imminent lawless action, including violence.
“We consulted, as Gov. Inslee said, with leading scholars, and we had to draft this in a way we think meets constitutional windows and would fit into a very tight window,” Sen. Frockt said.
The Governor’s Office takes First Amendment concerns seriously, he added.
“And so, we do not take the First Amendment for granted,” he said. “I don’t. We don’t treat it cavalierly.”
Still, some wonder about the proposed law’s practicality.
“My hunch is that this would be challenging to enforce,” Hugh Spitzer, professor of law at the University of Washington School of Law, told The Center Square in an email. “It requires that the perpetrator knowingly lie, intend to cause violence, and that violence has to occur. You can talk with a prosecuting attorney for his or her opinion. But my opinion is that prosecutors would only file charges in an egregious situation.”