Gov. Jay Inslee is right to decry lies about free and fair elections being corrupted. But a proposal to criminalize such falsehoods by elected officials and candidates is misguided and would be nearly impossible to enforce.
“Soon, legislation will be introduced in the state House and Senate that would make it a gross misdemeanor for candidates and elected officials to knowingly lie about elections,” Inslee said in a statement last week, on the anniversary of an insurrection at the U.S. Capitol. “The proposed law is narrowly tailored to capture only those false statements that are made for the purpose of undermining the election process or results and is further limited to lies that are likely to incite or cause lawlessness.”
Indeed, we have seen how lies about election outcomes can incite violence. Donald Trump’s persistent falsehoods that the 2020 presidential election was “stolen” — offered without proof — triggered the coup attempt at the U.S. Capitol. And according to a Washington Post/University of Maryland poll, that lie has led 58 percent of Republican voters to consider Joe Biden’s victory illegitimate, and 34 percent of Americans to consider political violence acceptable in some circumstances.
In our state, Republican candidate Loren Culp questioned the results of his gubernatorial race against Inslee and filed a lawsuit against state election officials. Facing possible sanctions for making meritless claims in court, Culp withdrew the lawsuit in January 2021. Culp lost the election by more than 500,000 votes.
While lies about the 2020 election have undermined our democracy by sowing doubt in the minds of voters and increasing the likelihood of future violence, criminalizing those lies would be the wrong approach. As the First Amendment to the U.S. Constitution spells out: “Congress shall make no law … abridging the freedom of speech.” And as Article I, Section 2 of the Washington State Constitution spells out, “The Constitution of the United States is the supreme law of the land.”
Indeed, some restrictions on free speech are allowed. As U.S. Supreme Court Justice Oliver Wendell Holmes Jr. famously wrote in a 1919 decision: “The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic. … The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger.”
Lies about election results and election security might create a clear and present danger, but legislating against them is a capricious endeavor. Allowing the state to determine what is false and what is likely to incite or cause lawlessness creates a slippery slope for democracy and the marketplace of ideas.
Rather than relying on the power of the state to filter opinions, it is up to the public to determine what has merit, what should be heard and what should be repeated. Admittedly, that process has undergone a vast change in recent decades with the advent of social media; the old line about, “A lie can travel halfway around the world while the truth is putting on its shoes” has never been more accurate.
But it is in times of national crisis that we should most depend on our Constitution. It is when the truth is under attack that we should lean on our values and our ability to cull the lies, holding faith that the truth will endure.
That might seem difficult when misinformation is so pervasive. But it is essential to allowing our nation to live up to its ideals.