Bill to criminalize “false election” political speech introduced

OLYMPIA, Wash., January 17, 2022 – Governor Jay Inslee’s new political speech bill, SB 5843, making it a gross misdemeanor for elected officials or candidates to “willfully lie” regarding the election process and results, underwent its first reading Thursday, January 13, at the Senate level.

Inslee first announced he would support this legislation at a virtual legislative preview hosted by the Associate Press, Thursday, January 6, the anniversary of the U.S. Capitol Breach, in which he referred to the ongoing “threats to democracy” as one of the biggest challenges in our community.

“It should not be legal in the state of Washington for elected officials or candidates for office to willfully lie about these election results in favor of democracy,” Inslee said.

During the preview, Inslee shared his personal experience when the governor’s residence was stormed by Trump supporters, some armed with assault rifles, causing him to be evacuated to a safe room.

“I feel deep in my heart what it meant when the temple of democracy was attacked,” Inslee said. “This is much more than a simple case of some violence. It is our democracy itself that was attacked and continues to be attacked.”

SB 5843 was read by request of Gov. Inslee’s office, and supported by Senators Frockt, Kuderer, Hunt, Keiser, Lovelett, Nguyen, Nobles, Salomon, and C. Wilson.

The original bill relates to public officials and candidates who knowingly make false statements and claims regarding the election process, adding a gross misdemeanor charge to chapter 29A.84, which pertains to penalties, punishable of up to 364 days in jail and up to $5,000 in fines. An amendment to RCW 42.12.010, which pertains to office vacancies, also adds that if an elected official is convicted, under this new amendment, they immediately forfeit the elected office.

“The United States supreme court has ruled that states have the power to restrict speech that incites or produces imminent lawless action. It is the intent of the legislature to hold elected officials and those that seek to hold an elected position who have taken an oath to uphold the Constitutions of the United States and State of Washington accountable and to prohibit these individuals from bringing forward false claims with the purpose of casting doubt on one of our most sacred institutions,” the bill states.

The Supreme Court ruling mentioned in the bill refers to the Brandenburg v. Ohio case of 1969, in which Ku Klux Klan leader Clarence Brandenburg was charged with advocating violence under the State of Ohio’s criminal syndicalism statute. The court ruled that the government cannot punish inflammatory speech unless it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

Earlier this month Inslee noted that Trump’s “big lie” and continuing “coup” is an ongoing “threat to democracy” that is “just as prevalent today as it was a year ago”, referring to the claim by former President Donald J Trump, and his supporters, that the 2020 election was stolen.

“The Democrats want to own this day of January 6th so they can stoke fears and divide America. I say, let them have it because America sees through theirs lies and polarizations,” President Trump released in a statement on January 6, the day Inslee announced his support of the new legislation.

Trump added, “They want all conversation concerning the Election “Canceled.” Just look at the numbers, they speak for themselves. They are not justifiable, so the complicit media just calls it the Big Lie, when in actuality the Big Lie was the Election itself.”

Inslee called out three Republican legislators, Rep. Brad Klippert (R-Kennewick), Rep. Vicki Kraft (R-Vancouver), and Rep. Robert Sutherland (R-Monroe), who he said contributed to the ongoing insurgency by attending an organizing effort and doubting the electoral process.

“This is a cancer in our society and I believe we all need to, both parties, respond to it to speak not just against the violence but against this continuing big lie that the defeated president, and his allies, that are continuing this effort,” Inslee said.

The three-term Democratic Governor hoped that more elected leaders would call out Trump’s effort, to confront him, and to not allow their colleagues to be allied with him, expecting Republicans to “forcibly” denounce the three Washington legislators who were allegedly “part of this conspiracy.”

Kraft and Sutherland defended their attendance at the Mike Lindell-sponsored Cyber Symposium to a Seattle Times reporter as being important to their work on election-related legislation.

Even if SB 5843 passes into law, the Washington Post wrote it could be an “uphill battle” in court, as exemplified by Washington’s recent history in attempting to criminalize false political speech.

In 2007 the Washington State Supreme Court struck down a 1999 law, in a 5-4 ruling, that prohibited political candidates from intentionally lying about their opponents.

“The notion that the government, rather than the people, may be the final arbiter of truth in political debate is fundamentally at odds with the First Amendment,” Jim Johnson wrote in the majority opinion.

Hugh Spitzer, a University of Washington law professor and expert on the state Constitution, told My News Network it would be difficult to make criminal charges stick in a case against a state official or candidate for making false statements about an election.

“It’s not easy to criminally convict people based on their speech, it’s always pretty hard,” Spitzer said.

Republican State Representative Drew Stokesbary (R-Auburn) took to twitter, January 6, to share his opinions on Inslee’s support for the legislation.

“You combat bad speech with better speech, not criminal sanctions. Threatening to jail people for political speech is as dangerous to our democracy as questioning election results,” Stokesbary wrote.

In a press release published by Jay Inslee’s office, the Governor issued the following statement regarding a government’s role in interpreting the First Amendment:

“We can outlaw actions that provoke political violence and in doing so also protect our democracy. There is more that can be done by states and Congress to protect our democracy. I am open to any proposal that will protect the will of the voters and the institutions they use to decide who governs them.”

Kienan Briscoe

Michael Kienan Briscoe (referred to by his middle name 'Kienan') has a BA in Journalism from Arizona State University and has worked as a freelancer for a variety of publications and organizations throughout New York City and Seattle. Journalism, to him, is one of the most important public tools to ensure an educated and aware society of events surrounding them. When he is not reporting he enjoys writing fiction and poetry, playing guitar, reading classic literature, and getting outdoors. He lives in Seattle with his two dogs.

Kienan Briscoe has 213 posts and counting. See all posts by Kienan Briscoe

2 thoughts on “Bill to criminalize “false election” political speech introduced

  • January 18, 2022 at 12:48 PM
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    This makes perfect sense. If there is suspected cheating done by one party and the other party complains about it they can be prosecuted and jailed. This is how dictatorships happen.
    I have an idea, how about strict voter ID laws. Only allow citizens to vote and require ID to vote. Absentee ballots only if justified. ID is required by virtually everything we do today. It is not racist. It is racist to insist certain races cannot provide identification or somehow make it to a polling booth. In Massachusetts (a very “progressive” state) if a person leaves their home they have to have ID and their vaccination card. Applying the same standard, that is racist.
    By making it easy to cheat, cheating will occur. Voting by mail makes it easy to vote but it does not provide any kind of integrity in the process.

    Reply
    • January 23, 2022 at 1:19 AM
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      This won’t pass: laws restricting speech has consistently been struck down, but Inslee’s right about one thing: something has to be done, this just isn’t it.
      We both know your ‘voter id’ point though, is complete nonsense: “poll taxes” have been empirically proven to have a disproportionately damaging effect on election participation by lower-income communities, communities with higher percentages of African-americans, and immigrant communities (legally nationalized citizens are allowed to vote, but often still live in immigrant communities). Make no mistake, making a law requiring identification to vote would require all citizens to purchase an ID, which for many people isn’t affordable or necessary for their daily life- especially in cities with public transportation. Legislating a cost to participate in the electoral process is against the very idea of democracy and unconstitutional, according to the 24th amendment.
      Notwithstanding, with the modern proliferation of identity theft, WA state’s method of mailing ballots to resident citizens isn’t only safe, it’s much more foolproof than expecting untrained volunteer poll-workers to prevent fraudulent votes being cast with stolen identities- freely available on the dark web.
      From the viewpoint of a ‘conservative’ or ‘libertarian’, it would make sense that a ‘progressive’ state like Mass would require ID and proof of vaccination, thereby infringing on personal liberties like freedom to travel, anonymity, etc. What I don’t understand is why a group that demands liberty would also demand that liberty be restricted by requiring ANY government-sponsored licensing or demands that you prove your right to exist. This isn’t nazi germany, we don’t require you to have permission to travel freely.

      Reply

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