Is it constitutional to make election lies a crime?

Washington Governor Jay Inslee wants state lawmakers to draw a hard line against election-related mis- and dis-information.

He's backing a bill that would make it a misdemeanor for elected officials and political candidates to “knowingly” or “maliciously” spread false information about election results if those lies incite violence.

Supporters argue that these are strange political times, illustrated by the January 6 U.S. Capitol insurrection.

But opponents say the bill is in clear violation of the First Amendment right to free speech — and even legal experts who helped craft it aren't sure it would survive a legal challenge.

"[Inslee] knows that this bill has serious First Amendment problems," says Paul Guppy, the vice president of research for the Washington Policy Center and a critic of the proposed legislation. "It's kind of woven and carefully worded to try to get around that, which makes you kind of suspicious about what he's trying to accomplish."

WHAT DOES SB 5843 DO?

Senate Bill 5843 targets speech that meets two specific criteria, as described in the bill:

1. False statements about the election process or election results made "knowingly, recklessly or maliciously" by elected officials or political candidates.
2. The statements incite violence that causes harm to a person or property.

The bill would apply only to elected officials or candidates who have filed to run for office in Washington state. Violations would be charged as a gross misdemeanor.

Anyone convicted of a gross misdemeanor in Washington could be sentenced to up to a year in a county jail, fined up to $5,000 or both.

Catherine Ross is one of the legal minds behind the bill's narrow language. She's the Lyle T. Alverson Professor of Law at The George Washington University Law School, and the author of “A Right to Lie? Presidents, Other Liars, and the First Amendment."

Ross says the incitement clause is key to this bill.

The U.S. Supreme Court has ruled that states can restrict speech that incites or produces "imminent lawless action" (Brandenburg v. Ohio).

By including incitement in the criminal criteria, Ross says the bill identifies the problem not as all lies but as a narrow set of lies from a narrow portion of the population that leads others to take a specific action.

It's the difference between "Uncle Jim" questioning the results of the 2020 presidential election in a public forum, and "Representative Jim" falsely telling a crowd on the Capitol steps that the election was stolen and they should take it back.

Moreover, Ross says the bill would not interfere with the formal process candidates, parties and voters can use to challenge the result of an election.

"[They can] challenge it in court, which is the system that we use now, and go all the way up to the Supreme Court if the Supreme Court would be willing to hear the case," she explains. "They're also free to ask questions. The candidate is free to voice opinions ... The only thing the candidate cannot do is say 'I won' when, in fact, the candidate lost."

Here's an (admittedly imperfect) football analogy:

The Seattle Seahawks are playing the Miami Dolphins.

The referee makes a call against the Seahawks that leads to a game-winning touchdown for the Dolphins.

Seahawks Head Coach Pete Carroll doesn’t think the call was accurate, and he challenges it.

The call is reviewed. It stands.

Carroll still disagrees. Now, he gets in the ref’s face, shouting and accusing the ref of making a bad call.

The ref ejects Carroll from the field, but Carroll isn’t done.

He insists the call was bad, the game rigged against his team, that the Seahawks actually won and he encourages fans to rush the field in retaliation.

They do. Chaos ensues.

Carroll used the formal appeals process that was available to him. Rather than accept the result, he made demonstrably false claims — the game was rigged and the Seahawks, not the Dolphins, won— which led to violence.

WHY DOES INSLEE THINK WE NEED SB 5843?

Inslee argues election lies are a threat to our democracy.

"Our democracy remains an experiment, and we cannot take it for granted," he told lawmakers. "'The big lie,' that we can't trust our democracy to count the votes, has become a weapon. That weapon is being used all over America, including right here in our state, and it will again incite violence."

By targeting this narrow speech, the governor says Washington state can prevent that violence and restore faith in the system.

Paul Guppy says the reality is it would do just the opposite.

"The point of free speech is for the public to be able to judge for themselves [what they believe]," he says. "If they feel that something is being hidden from them, it just makes people more suspicious, violates our democratic norms and undermines confidence in our elections."

And Guppy is not alone in this view.

Several Washingtonians testified against the bill during a recent Senate Committee on State Government and Elections hearing.

While some of the concerns raised during the hearing were predicated on the so-called "Big Lie" that President Joe Biden stole the 2020 presidential election — he did not — they were a reminder that partisan divisions have made sorting fact from fiction a politically fraught endeavor; there is no evidence Biden's 2020 victory was illegitimate, despite several reviews of the results in states like Arizona.

Guppy says the bill would stifle legitimate debates about our elections and election security.

"No public official, no candidate for office wants to be accused of a gross misdemeanor," he says. "Even having the allegation filed against you would be enough to ruin your political career. So, it's not so much the detailed parsing of the language. It's the larger intent of trying suppress views that the governor doesn't agree with or doesn't want you to hear."

Catherine Ross says it's not about what Inslee or anyone else agrees.

"It's not about one party or another," she says. "It is about the crisis of Democracy."

IS SB 5843 CONSTITUTIONAL?

As of Feb. 4, SB 5843 was passed on to the state Senate Rules Committee for the next round of hearings; that Committee will effectively determine whether the full Senate will vote on the bill, which would allow it to move on to the state House of Representatives.

So, it still has a long way to go before Inslee can sign it into law.

Even if he gets that chance, it's still not a done deal.

The bill would likely be challenged in court to determine whether it's constitutional; a ruling on that question could be appealed all the way to the U.S. Supreme Court.

And this is where the conversation gets fuzzy, because even Ross cannot say with certainty that the bill would survive the courts.

She's been honest about that. At the bill's first committee hearing, she explained: "There is no way to know what will happen when this is challenged in court, assuming it's challenged in court, because this bills treads a lot of fresh territory."

Ross says lies are somewhere in the "gray zone" of constitutional protection.

The U.S. Supreme Court says a statute that punishes lies just because they're false is not constitutional.

If lies harm someone or unfairly benefit the liar, though, they could be regulated.

That distinction does not make SB 5843 bulletproof. That's why Ross and her fellow drafters tried to be as specific as possible.

"The bill is not designed to regulate every kind of campaign falsehood," she says. "It leaves everyone other [than] candidates to lie as much as they want, about anything they want, and it leaves candidates free to lie about whatever they want except to falsely claim that the election results were other than what they were, in fact, found to be... and the election is certified by the state."

So what, if anything, could lawmakers do to make Paul Guppy and other opponents more comfortable with the intent?

Guppy says, they could just vote it down and rely on existing laws to apply in these specific cases.

"[The threat of imminent violence] is already illegal in a content-neutral law," he says, referring to incitement. "If you're inciting violence, then that's a violation. It's very direct. So, we don't need a new law."

Crafting new laws is the name of the legislative game, though.

It will be up to Inslee's fellow majority Democrats to decide whether SB 5843 is necessary — before a judge is likely called on to continue this debate.

This story has been updated.