Washington State Bill Causes 1A Concerns

An updated bill in Washington state has some worried that candidates could be jailed for political speech.

According to The Seattle Times, the bill specifically limited the speech of candidates for public office to make it a crime to “knowingly, recklessly or maliciously” lie about election results when the lies led to violence. A gross misdemeanor charge in Washington comes with a fine of up to $5,000 and confinement in county jail for up to 364 days.

“The horrific insurrection we witnessed at the U.S. Capitol — and the mob that broke through the barriers here in the Capitol — they represent the here-and-now,” Washington State Governor Jay Inslee said in his testimony to Congress, referring to the Jan. 6 riot at Capitol. “And they are harbingers of what will come forward if we do not act.”

The bill was then revised in an effort to alleviate free speech concerns, but experts said the bill targeted speech in ways that would not survive a court challenge.

“I think this bill is really pro-democracy,” Inslee added later. “Because it is neutral, it applies to every politician — regardless of your party — and it is very carefully written to protect the First Amendment as well.” 

Some scholars were concerned about the free speech implications of the bill, however.

“By ‘neutral,’ I hope that he doesn’t mean content neutral for 1A scrutiny purposes,” professor Jeff Kosseff, an expert on cybersecurity law at the U.S. Naval Academy, tweeted. “Because it is not. It is content based and will receive more rigorous scrutiny, particularly bc it applies to political speech and threatens politicians with jail.”

“It’s also concerning that he is using ‘clear and present danger,’ as that is not the constitutional standard under which this will be evaluated,” he added.

In sum, Kosseff said the bill would have what is known as a “chilling effect” on political speech.

“Will politicians risk jail time or refrain from criticizing elections?” he asked.

Paul Guppy, vice president of the Washington Policy Center, a conservative think tank, also said the bill would cause more harm than good.

“It doesn’t increase the confidence in the outcome of the election, it actually creates more suspicion when people are not allowed to debate the outcome of the election honestly,” Guppy told The Times.

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