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Opinion >  Column

Shawn Vestal: Inslee’s right about the disease, but wrong about the cure

Jan. 14, 2022 Updated Fri., Jan. 14, 2022 at 1:56 p.m.

Washington Gov. Jay Inslee gives his annual State of the State address at the Capitol in Olympia last month.  (Ted S. Warren/Associated Press)
Washington Gov. Jay Inslee gives his annual State of the State address at the Capitol in Olympia last month. (Ted S. Warren/Associated Press)

Marilou Rickert did not set Washington politics on fire when she ran for the Legislature in 2003.

Rickert, an attorney and Green Party candidate who tried to unseat long-term incumbent Tim Sheldon in the West Side’s 35th district, lost by a huge margin, with Sheldon gathering about 80% of the vote.

Rickert nevertheless holds an important legacy in Washington politics as a free-speech figure. It was Rickert who was charged with violating state law for telling a falsehood about Sheldon in her campaign – she incorrectly characterized a vote he took on a flyer – and it was her case that the state Supreme Court used to throw out that law.

A political candidate making “knowingly false and reckless statements,” the court ruled, is constitutionally protected speech.

“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,” the court’s 5-4 majority opinion read.

Now the governor is looking to take on the tsunami of election lies that is animating a large part of the conversation on the political right – and taking a run directly at the boundaries established in Rickert v. Washington.

Gov. Jay Inslee is supporting legislation that would make it a crime to tell lies about election results. The legislation is still being drafted, but his notion is to make it a gross misdemeanor, punishable by up to a year in jail and $5,000 in fines, for candidates to tell lies about elections with the knowledge that such lies can incite violence.

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

In laying out his reasoning, Inslee is right about a whole lot. He is 100% correct that too many elected officials have been lying about elections – just pulling blatantly idiotic nonsense out of thin air. He’s correct that these lies have fueled dangerous, destructive violence, and he’s accurate in identifying the rotting head of that stinky fish as the former president, who seems unable to speak without lying.

He’s right that the election lies are a threat to our democracy, and that the lying is not limited to national elections. If you think the “Trump won” lies are a steaming pile of horse flop, try “Culp won.” This is an actual thing, too dumb to be believed, and yet it is being advanced by some Republicans right now, including Joe Kent, a Trumpworld favorite trying to unseat Rep. Jaime Herrera Beutler. Kent calls Loren Culp the real governor of Washington.

All of these lies, and the large numbers of people who swallow them, are a huge problem for our country. But this proposal is no answer. For constitutional, legal, practical and political reasons, it’s a bad idea.

Free speech is such a fundamental right that there is a significant degree of protection for some false speech – as in the Rickerts case – as well as important barriers to the state acting as the arbiter for what speech is accurate or acceptable.

It’s not as if lying is completely protected. Perjury, fraud and libel are instances in which false speech is not protected by the First Amendment. But the Supreme Court has often elevated freedom over accuracy or honesty, especially in political speech. It has struck down laws attempting to prohibit people from lying about their military service (the so-called Stolen Valor Act) and protected the press from libel claims when it publishes incorrect information about public figures, unless such publication is done with “actual malice” (the landmark Times v. Sullivan case).

That’s to name just two cases. The constitution and a long history of case law establishes the freedom to say certain false things as an important indicator of true freedom. It is no kind of freedom at all, in other words, to say only that which is governmentally vetted.

At a time of rampant, destructive dishonesty in politics, it’s not hard to see the appeal of Inslee’s proposal. Journalists and online platforms have been challenged with an ever-greater need to act as editors and gatekeepers against the dissemination of lies; this is not, as people often claim, a violation of the First Amendment. Journalists and online platforms, as opposed to the government, have a responsibility to edit, vet, fact-check, challenge and be discerning about who they amplify.

That is the marketplace of ideas, and it is – theoretically – the way that bad speech is combatted. Ideally, the existence of ample, robust volumes of accurate, factual information will overwhelm false ones. I’m not sure this is true anymore, if it ever was. The edifice of media organizations and online platforms that sustain lies has grown so large that people can simply climb inside it and never learn an accurate fact.

Still, that doesn’t mean it’s time to begin empowering government to prosecute political speech. There are legal obstacles, including the difficulty of proving a statement is a lie rather than simply incorrect, as well as the challenge of establishing, beyond reasonable doubt, an “intention” to incite violence.

And there is an absolute certainty of a spectacular backfire. Think of the “Culp won” crowd. Imagine their delight at being prosecuted for telling this lie – one based on the premise that the government is conspiring to hide the truth from people. Imagine their delight at being handed this badge of honor, and how good it will be for their ability to raise money from the millionaires who support the election lies.

Inslee’s right about the sickness, wrong about the cure. The Rickert case differs from Inslee’s proposal in key respects. As the governor noted, Rickert dealt with falsehoods told by one candidate against another; his proposal would go after lies about the electoral system generally, and those intended to incite violence.

It’s hard to imagine, though, that the state Supreme Court would not come to the same conclusion with this proposal as it did in Rickert: “government censorship … is not a constitutionally permitted remedy.”

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