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Free Speech

Seditious Libel, Today and 225 Years Ago

Washington Governor Jay Inslee is supporting a law that would ban lies about election results that “are likely to incite or cause lawlessness”—an argument much like that made by supporters of the Sedition Act of 1798.

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Gov. Jay Inslee released the following statement [Thursday] announcing his support for legislation currently being written that would outlaw attempts by candidates and elected officials to spread lies about free and fair elections when it has the likelihood to stoke violence.

"January 6 is a reminder not only of the insurrection that happened one year ago, but that there is an ongoing coup attempt by candidates and elected officials to overturn our democracy. They are willing to do this by provoking violence, and today I proposed we do something about that in Washington.

"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. 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," Inslee said.

The U.S. Supreme Court has made it clear that speech can be limited where it is likely to incite lawlessness, Brandenburg v. Ohio, 395 U.S. 444 (1969). Unlike the state supreme court decision in Rickert v. State, Public Disclosure Com'n, 161 Wash.2d 843 (2007), which addresses false statements made by one candidate about another candidate, this legislation is not about what candidates can say about each other.

"This legislation attempts to follow the relevant U.S. and state supreme court opinions on this issue. We're talking about candidates and elected officers knowingly throwing bombs at democracy itself when doing so is likely to result in violence," Inslee said. "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."

There's apparently no draft statutory language yet, and it's possible that the law would be so limited as to be both constitutional and likely redundant of existing law: If it's limited to speech that (1) had the purpose of persuading people to commit crimes (and not just "the purpose of undermining the election process or results"), was (2) likely to have that result, and (3) the result was intended to and likely to be imminent, which likely means within hours or days (an element missing from Inslee's description ), it would indeed fit within the Brandenburg v. Ohio "incitement" exception.

Shouting "burn it down" or "break in and ransack" to a mob standing in front of a building, with the purpose of causing them to commit crimes, is constitutionally unprotected—indeed, whether the speech consists of knowing lies or even opinions or truthful statements. (R.A.V. v. City of St. Paul might preclude incitement laws that are selectively targeted towards statements about elections, but that's a complex question.) Yet such speech is already likely illegal under Washington's general criminal law (see also this case interpreting that statute).

But I assume, based on the Governor's general statement, that he has bigger fish to fry: I take it that he's after knowing lies that risk long-term harms (whether attempted revolution or criminal noncompliance with the law) and not just imminent ones. This is a factually perfectly plausible concern. Indeed, it is an old concern, which dates back at least to the Founding era, and in particular to the debates about the Sedition Act of 1798 and similar speech restrictions—laws that generally banned (to quote the relevant part of the Sedition Act),

false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress …, or the President …, with intent to defame [them]  … or to bring them … into contempt or disrepute; or to excite against them … the hatred of the good people of the United States.

The Act's backers stressed that the law (unlike the English common law of seditious libel) was limited to "false" and "malicious" statements; and they noted the importance of restricting those statements. Here is Justice Chase's instruction to the jury in U.S. v. Cooper, about the Sedition Act specifically:

If a man attempts to destroy the confidence of the people in their officers, their supreme magistrate, and their legislature, he effectually saps the foundation of the government.

And here is one from Justice Iredell in Case of Fries, dealing with a treason prosecution arising out of the Fries Rebellion in Pennsylvania in 1799; Iredell was defending the Sedition Act of 1798, though Fries wasn't tried under that Act:

Ask the great body of the people who were deluded into an insurrection in the western parts of Pennsylvania, what gave rise to it? They will not hesitate to say, that the government had been vilely misrepresented, and made to appear to them in a character directly the reverse of what they deserved.

In consequence of such misrepresentations, a civil war had nearly desolated our country [I believe this refers to the Whiskey Rebellion -EV], and a certain expense of near two millions of dollars was actually incurred, which might be deemed the price of libels, and among other causes made necessary a judicious and moderate land tax, which no man denies to be constitutional, but is now made the pretext of another insurrection.

The liberty of the press is, indeed, valuable—long may it preserve its lustre! It has converted barbarous nations into civilized ones—taught science to rear its head—enlarged the capacity-increased the comforts of private life—and, leading the banners of freedom, has extended her sway where her very name was unknown. But, as every human blessing is attended with imperfection, as what produces, by a right use, the greatest good, is productive of the greatest evil in its abuse, so this, one of the greatest blessings ever bestowed by Providence on His creatures, is capable of producing the greatest good or the greatest mischief….

Men who are at a distance from the source of information must rely almost altogether on the accounts they receive from others. If their accounts are founded in truth, their heads or hearts must be to blame, if they think or act wrongly. But, if their accounts are false, the best head and the best heart cannot be proof against their influence; nor is it possible to calculate the combined effect of innumerable artifices, either by direct falsehood, or invidious insinuations, told day by day, upon minds both able and virtuous.

Such being unquestionably the case, can it be tolerated in any civilized society that any should be permitted with impunity to tell falsehoods to the people, with an express intention to deceive them, and lead them into discontent, if not into insurrection, which is so apt to follow? It is believed no government in the world ever was without such a power….

Combinations to defeat a particular law are admitted to be punishable. Falsehoods, in order to produce such combinations, I should presume, would come within the same principle, as being the first step to the mischief intended to be prevented; and if such falsehoods, with regard to one particular law, are dangerous, and therefore ought not to be permitted without punishment—why should such which are intended to destroy confidence in government altogether, and thus induce disobedience to every act of it?

It is said, libels may be rightly punishable in monarchies, but there is not the same necessity in a republic. The necessity, in the latter case, I conceive greater, because in a republic more is dependent on the good opinion of the people for its support, as they are, directly or indirectly, the origin of all authority, which of course must receive its bias from them. Take away from a republic the confidence of the people, and the whole fabric crumbles into dust….

Gov. Inslee's argument seems to me to be implicitly premised on the same sort of concern; though the proposed bill would apply to only a particular subset of such "seditious libel" (lies about the supposed corruption or invalidity of elections, rather than lies about the government broadly), it is concerned precisely with the danger that such lies will undermine the government's credibility and perceived legitimacy, and thus lead to violence or even rebellion.

Again, these concerns are serious concerns, held by serious leaders during the Framing Era. But I think that our legal system has rightly retreated from punishing such seditious libels, partly because criminalizing even outright lies ("false" and "malicious" statements) about the government

  • unduly risks suppressing or at least deterring even legitimate opinion,
  • unduly risks suppressing allegations that would ultimately prove accurate, and
  • unduly risks selective enforcement by officials of that government.

For an example of these problems, see U.S. v. Cooper itself; and the Supreme Court recognized this in 1964, concluding that:

Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history. Fines levied in its prosecution were repaid by Act of Congress on the ground that it was unconstitutional…. The invalidity of the Act has also been assumed by Justices of this Court. These views reflect a broad consensus that the Act, because of the restraint it imposed upon criticism of government and public officials, was inconsistent with the First Amendment….

[Though false, malicious allegations against specific public officials may be punished,] "no court of last resort in this country has ever held, or even suggested, that prosecutions for libel on government have any place in the American system of jurisprudence."

Likewise, the Washington Supreme Court struck down state statutes that ban lies in election campaigns (whether about initiatives119 Vote No! Committee, or candidates, Rickert). The concern in such cases is with fraud on the voters, rather than loss of public confidence in the government, and courts are more split on those. Compare In re Chmura (Mich. 2000); State v. Davis (Ohio App. 1985) (both upholding such election lie statutes) with Susan B. Anthony List v. Driehaus (6th Cir. 2016); 281 Care Comm. v. Arneson (8th Cir. 2014); Commonwealth v. Lucas (2015); and the two Washington Supreme Court cases (all striking them down). (I also think that laws that ban lies about the mechanics of voting, aimed at duping people about when, where, and how to vote, may be constitutional, because they focus on narrow and easily ascertainable questions, and because they aren't essentially aimed at protecting the government's reputation.)

But the important thing is that the Washington decisions reaffirmed the impropriety of the punishment of seditious libel: They stressed, with New York Times v. Sullivan, that "the Sedition Act of 1798, which censored speech about government, has been subject to nearly unanimous historical condemnation," and rejected laws that generally ban lies about "government affairs" that "coerce[] silence by force of law and presuppose[] the State will 'separate the truth from the false' for the citizenry…. The First Amendment exists precisely to protect against laws … which suppress ideas and inhibit free discussion of governmental affairs."

Again, I agree that lies about the government—whether about election results, police abuse, or many other subjects—can at times lead, have at times led, and will at times lead to criminal violence. But American First Amendment precedents take the view that it's still more dangerous to allow the government to punish speech on the grounds that it might damage the government's credibility or legitimacy and thus lead to such crime (even speech that prosecutors, judges, and juries find to be knowingly false).

NEXT: Princeton's Free Speech Initiative

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  1. Was the Sedition Act compatible with the original public understanding of the First Amendment or not? Discuss. And please address why the Congressmen who were often drafters or ratifiers or contemporaries of drafters or ratifiers might have thought it was.

    1. Power corrupts. And it wasn't just Adams. Look at Jefferson's trade embargo.

      Power corrupts.

      1. It wasn't that they intentionally or negligently violated what they just wrote because they had suddenly become corrupt.

        Rights in the founding era did not operate as they do nowadays. Judicial review wasn't even a thing yet. And make no law didn't actually mean no law, it was more of a balancing test.

        1. "And make no law didn't actually mean no law, it was more of a balancing test."
          That isn't quite true. The Federalists may have believed it, but the unpopularity of the Alien and Sedition Acts, the laws of the states, and the opinions expressed (if not the political remedies proposed) in the Kentucky and Virginia Resolutions indicate that their political opponents, who ended up carrying the day in the end, believed that free speech was much more strict than you would have them believe.

          1. I have long wondered why the expressed fears of the Anti-Federalists about what the then-new Constitution meant and would authorize aren't generally cited in determining original public meaning. They thought it was bad because it would concentrate enormous, expansive powers in the new central government. Maybe it did. Maybe it was a bad idea that the Constitution did that, but that is a different question from whether the Constitution did that. But I rarely see anyone argue that the central government has power X because Luther Martin or Patrick Henry or Melancton Smith or a Federal Farmer thought it did and, consequently, didn't like it.

            1. Excellent point.

            2. The Federalists pretty much blew apart in the years following Jefferson's elections, well before the new system was really set. It doesn't help that the Federalists were all effectively tainted with the acts and that our current parties would ascribe their origins to Jefferson's party.

              1. All the more reason to pay attention to what the Anti-Federalists thought the Constitution did, even if they didn't like it.

                1. In many cases it wasn't so much a case of what they thought the Constitution actually did, so much as what they feared the Federalists might claim it did unless there was extra clarification.

                  The Federalists maintained, prior to it taking effect, anyway, that the Constitution didn't authorize the abuses the anti-Federalists feared. Since it gave the federal government no power to infringe on freedom of speech, no prohibition on infringing on freedom of speech was needed, for instance.

                  The Anti-Federalists thought the Federalists would change their tune on implied powers as soon as the Constitution took effect, and so wanted an explicit prohibition of certain abuses, and a statement disclaiming implied powers.

                  They pretty much were right, as the Alien and Sedition acts demonstrated.

                  1. And in many cases not.

        2. It wasn't that they intentionally or negligently violated what they just wrote because they had suddenly become corrupt.

          That's wrong and you know it. Power had corrupted them, whether or not they recognized it as corruption. Adams absolutely did want to shut down criticism, and there is no reading of the First Amendment which allows the federal government to shut down newspapers or criticism in general. Jefferson absolutely did want to shut down trade, and there is nothing in his principles which allowed that; he did it because he could, he was in charge, and that was that.

          1. I tell people: Don't take early laws as proof that the Bill of Rights didn't forbid something! They didn't prohibit the government from doing various things for yucks, they did it because they thought there was a temptation to do it.

            1. How can you tell what early laws (Constitution) allowed or not without taking into account other laws with similar topics, language, etc.?

              1. Well, you can see that the Alien and Sedition acts got a huge amount of pushback, for instance, and explicitly on 1st amendment grounds. They were recognized at the time as a violation, even if not by the perpetrators.

                1. Good point, but the rebuttal is they were passed in the first place and opposed by the minority.

                  1. So a constitution can never be violated by a legislative majority?

          2. "That's wrong and you know it."

            Come on. The proposition "the Founders soon corrupted rather than that they had a different view on this" is certainly not an obvious one.

        3. "Judicial review wasn't even a thing yet."

          Ah, an admission that Marshall made it up.

          1. William Treanor has a long and detailed article discussing how judicial review was indeed familiar to the Founders, see https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=2040&context=facpub .

            1. An interesting article, thank you.

              I suppose saying Marshall made it up goes too far. The idea certainly existed, like various theories of constitutional interpretation do now. The key passage in that article is this:

              "those leaders also recognized that, under mid-eighteenth-century British law, Parliament was supreme and no court could overturn its enactments."

              "judicial power" could not therefore be understood to include a power not exercised by English common law courts of the time at all. If the common law was adopted by the Constiution, this limit was also.

              The discussion of scattered state court opinions proves nothing about the US constitution either.

              Alas, a page of history etc. Federal courts are never going to give up their power and become just regular courts again.

              1. Not sure in a federated country that one part of the federal govt can decide if a federal law or action is constitutional? Sort of like a football game and the umpire is on one team. Hard not to read the Kentucky and Virginia (esp the Kentucky) and ask if the Federal Govt was a creation of the States, in the end the States through their own legislatures should decide if a Federal law or action is constitutional. Understand allowing an individual state to do this would wreck the union but say a supermajority (30 States) should be able to veto any federal law or legislation. That would be a serious check and balance on DC.

          2. Excuse my colloquialism. It had not yet been recognized as the vital part of separation of powers it soon became.

  2. What frustrates me most about this is we do have a real problem with distrust over the integrity of elections. Democratic elections require broad public support. With up to 1/4 of the electorate questioning the results of 2020, it is questionable whether sufficient support still remains for our electoral process.
    I can't think of a worse way to help further erode public trust than this law.

    1. I was saying to anyone who would listen before the 2020 election, that as high as political distrust was, we should just turn election security up to 11, and run a totally by the books election.

      Instead they just winged it.

      And now they want to double down on everything they did to convince people it wasn't an honest election.

      You don't convince people you're right by censoring anyone who disagrees with you. You convince them that you're wrong, and know it.

      1. Election security was turned up to 11, neutral observers agree it was one of the most securely run elections of modern times. It's just one side had a very loud very sore loser and a lot of his supporters gave him a lot of credence (well, that, and it's just established doctrine now on the Right that Democrats in 'those cities' always cheat a lot).

        1. Election security was turned up to 11

          On a 100 scale, agreed. On a 10 scale, I'll ask for a cite that does more than just parrot the words.

          neutral observers

          Who?

          agree it was one of the most securely run elections of modern times

          Based on what? The crooning assurances of the winning team?

          1. Whoops.

            https://www.vox.com/2020/11/13/21563825/2020-elections-most-secure-dhs-cisa-krebs

            Well, this was a Trump appointee, so maybe not so neutral, 😉

            1. Cool, Queenie can paste links! Very exciting.

              For an encore are you going to address my questions, or nah?

              1. Lol! "I sent you a rowboat and a motorboat and a helicopter, what more did you expect?” "

                1. Sorry, Charlie -- the only Go Fish I play is with a deck of cards. Feel free to say something if you have anything to say. I'll not hold my breath.

              2. It makes sense that you'd try to ignore the evidence just thrown in your face.

                Chris Krebs said so, and quite frankly, if you're going to complain that the election wasn't secure, then you should probably have something that none of the Trump lawyers managed to consider having:

                Evidence.

                1. They had plenty of evidence the election was insecure. The courts uniformly wanted evidence that the election was stolen.

                  It's like you're claiming that your accountant embezzled, and the courts reject the claim because all you can prove is that he burned the account books, not what had been in them.

                  1. If you can't point to any substantive evidence of fraud, then you have no evidence upon which to base a claim that the election was not secure enough.

                    What you and Brian really mean is "Trump lost, so something must have been wrong with the process."

                    That is a theory - not evidence.

            1. Surely you can trust me said the spider to the fly!

      2. But the election of 2020 was for the most part run by the books. Law allowing absentee ballots were already on the books. The difference in 2020 is that these mail in ballots were used in greater number. What people are quibbling about is minor and really no more than we have ever quibbled about in past elections.

        1. Deviations from the rules are always "minor" so far the winner is concerned. No harm, no foul, and THEY weren't harmed.

          1. That is true about all competitions. How many times do people watch a sports game and conclude that their team lost because of the refs? If we are willing to accept deviations when we win, we cannot insist on perfect compliance when we lose.

          2. The rules about when to deviate from the existing rules were followed.

            2 layers of rules is not quite that complicated. And yet you can't seem to get it still.

            Almost as though you want to just dip your toe into the 2020 election being illegitimate, but not be one of those crazy people.

            Bad news for you, though.

      3. There is a lot of easy measures that could be done to improve confidence in our elections e.g., not counting any votes until all the votes are in, not counting votes without observers present, voter ID, cleaning voter rolls, etc. I see no evidence that the D's are interested in those measures.

        1. I don't know about the first one, but voter ID and cleaning voter rolls is (at times!) objected to by Democrats because of concern that legitimate voters will be barred from voting because of them. At least be honest about where your opponent is coming from.

          1. Objected to by a minority of Democrats, albeit a majority of those in office. Polls show that a healthy majority of Democratic voters support Voter ID laws.

            It's not so much a concern, I think, that legitimate voters will be barred from voting. "Barred" is too absolute a way of putting it. It's more a concern that a great deal of the Democratic party's base are poorly motivated to vote, and any slight inconvenient will cause them to refrain. So they want voter convenience maximized.

            You know, the old idea that Republicans would pray for rain on election day, because their voters were going to show up come Hell or high water, but the Democrats would stay home if the weather was bad?

            But, of course, nobody is impressed by the looming threat of minor inconvenience, so they insist on calling slight inconveniences "voter suppression".

            The thing is, just about any sort of ballot security is going to be at least a little inconvenient compared to running things on the honor system, so the Democrats find themselves generally opposed to everything that might secure the ballot, and Republicans see that, and think it proof that they intend fraud.

            By the way, the recent election 'reform' bills do incorporate some genuine ballot security, but that's just, IMO, the sugar coating on the poison pill, because they are so adamant that you can't have the ballot security without major ballot insecurity measures, such as ballot harvesting.

            And, of course, Republicans still recall the way they got screwed with HAVA, where they traded motor voter provisions for mandates that voter rolls be regularly purged, and that end of the bill was never put into effect. They no longer have any belief that their end of such trades will ever be delivered, and rightfully so.

    2. You cannot?

      How about laws that make it easier for a state legislature to invalidate the popular vote and install their own electors? How is that not far worse?

      One makes lying about the elections a crime. The other makes it legal for partisans to throw out the popular vote and substitute it for their own preferences. The first potentially erodes our first amendment rights. The second erodes the power of elections in general. See the difference?

      1. "How about laws that make it easier for a state legislature to invalidate the popular vote and install their own electors? How is that not far worse? "

        It's not worse, on account of being fictional.

        1. Fictional? This was literally Trump's stated plan.

          1. Cite the laws, then, and the provisions permitting that.

        2. What Trump really tried to do is to invalidate the FAKE vote reports and get the states involved to report the actual votes.

          Of course, SCOTUS and most of the other courts involved were so prejudiced that they never considered the merits of his cases.

    3. 1/4? Try about 60%.

      1. Most of them have dementia, amirite MK?

    4. When I voted for my school board/budget in May I HAD to show a photo ID and show up in person. They also had the elections at only the high school for one day. I asked why with covid we didn't get mail in ballots for everyone and the person working laughed and said the Teacher Unions wouldn't like that. Elections are manipulated today by the party in charge locally, don't fool yourself. Why do cities always hold their votes back until after the rural and burbs come in? We all know why. The corruption has just gotten worse as the money in govt has increased.

  3. Arguments advancing speech rights would be more persuasive from a source that does not punish speech -- censor or ban commenters -- for use of certain puns, for use of certain terms that displease conservatives, or for making fun of conservatives.

    1. Lets just stick with the first amendment . What does it say?

      1. I try to avoid performing basic research for disaffected right-wingers; how are they to learn anything if we coddle them?

  4. The delusion which seems to dominate Inslee's statement is that people, including Trump, who assert that the 2020 election was stolen from Trump, are "deliberately lying".

    I don't think the election was stolen, but, based on the evidence, I can understand why someone could come to believe that the election was indeed stolen.

    The truth of the 2020 election is not determinable by authoritative statements, or by popular opinion. Those who believe it was stolen seem, to me, to be mistaken, but not lying.

    1. based on the evidence

      What evidence, pray tell? Would that be any of the piles of evidence that were submitted in court in the Kraken cases?

      1. Are you claiming there was zero fraud? If so, you are lying and subject to this law. The only real question is how much fraud. Even one fraudulent vote makes your claim a lie.

        1. They've certainly unearthed a handful of fraudulent votes for Trump, but not enough to allow him to "steal" the election (since, you know, he lost).

      2. What evidence, pray tell?

        Evidence of non-transparent periods during the count.

        All it takes, if you are looking at the election through a dark lens, is to show that five US counties had at least one non-transparent episode. A non-transparent episode can cover up an unlimited amount of fraud. An unlimited amount of fraud in one county can swing an entire state. And the evidence shows such episodes.

        Most of us look at a larger picture and see the non-transparent episodes as being perhaps fraud, but not big enough fraud to steal the election. But we don't know that.

        1. Arguendo this exists in a significant way, at best evidence of non-transparent periods isn't evidence of fraud, it's evidence or periods where fraud *could* have occurred.

          "A non-transparent episode can cover up an unlimited amount of fraud."

          Not necessarily. If a precinct were to ascribe too many votes fraudulently it would show up in indirect ways (more votes than there were voters there or results very anomalous to previous elections there or other precincts).

          1. The burden of proof is on the party trying to show that the election was legitimate.

                1. No.



                  And while this is fun, I will elaborate: no. The person declared the winner does not have to prove anything. If you want to challenge the election, you have to prove that the election was flawed.

          2. And that did happen. And the courts ignored their duty.

        2. This isn't evidence of fraud. At best, that is evidence that you are unsure of what happened; it could have been fraud or been a normal, trustworthy, professionally managed election. Without evidence, or at least a trend of fraud during these "non-transparent episode[s]", there's nothing there but speculation--in the kindest view--and conspiracy theory if one is less kind.

          1. That's the point, though. You don't necessarily need evidence of fraud to take an incorrect view of what happened in the election, you just need a clear possibility and a willingness to believe it could happen. Coupled with being already assured of your own victory it's enough to hold the belief, even if it's wrong. The person then isn't lying even though they are wrong.

            1. Can you really say that a view is "incorrect", though, if you DO have such a clear possibility? If there is that possibility, I think all you can say is that it's unproven.

              And that IS kind of the point of kicking out observers, and breaking chains of custody: To make sure fraud can't be proven.

              As I've said, once you insist on shuffling the deck out of sight, you've lost any right to demand that the other guy admit he's fairly lost the subsequent draw. Doesn't matter how honest you know you are, you blew it in terms of demanding that the other guy believe you.

          2. Without evidence, or at least a trend of fraud during these "non-transparent episode[s]", there's nothing there but speculation--in the kindest view--and conspiracy theory if one is less kind.

            Correct. Speculation or reporting a belief in a conspiracy theory are not lying, let alone deliberate lying.

            We all know how it works. Without evidence of fraud, we legally have to accept the election and move on, even when we see irregularities.

            That doesn't make it a lie to espouse a belief that the election was stolen.

      3. Illegal votes many times the margin of victory in several states.

        The goalpost shifting game was to demand someone prove that those illegal votes would have gone to President Trump... which I certainly hope is (and forever remains) technically impossible.

        1. No, there were no illegal votes in those numbers. Or anywhere near those numbers.

    2. " I don't think the election was stolen, but, based on the evidence, I can understand why someone could come to believe that the election was indeed stolen. "

      Evidence? Your understanding is daft.

  5. I wonder if this would have included Hillary's constant whining about Trump having stolen her election.

    I wonder if this would include all the people saying there was zero fraud.

    I wonder if this will include all the whining that 16-year-olds are disenfranchised, that motor voter laws are necessary to prevent disenfranchisement, if voter ID laws are disenfranchising voters.

    Naw, just kidding. I don't really wonder. The answers depend entirely on who is enforcing this law.

    1. Hillary stayed quiet after she lost for quite some time, and never told people to get angry about what was stolen from them.

      This law is bad, but you don't need to strain yourself to bothsides this.

      1. Thank you for clarifying, former spokesman for President Gore and current spokesman for Governor Abrams.

        1. Yes, I remember when Gore got 100 Democratic Congresspersons to vote to not certify the 2000 election. Totes same!

          1. The reason there was not more outrage in 2000 is because the right wing echo chamber was in its infancy and Democrats were a little caught by surprise. So they thought Limbaugh didn’t have any power and Fox News didn’t have that many viewers but in fact the right wing echo chamber was growing more powerful by the day right under the noses of Democrats. So George Washington warned us about George W Bush and not really about Trump in his farewell address.

            1. "the right wing echo chamber was in its infancy and Democrats were a little caught by surprise"

              WTF?

              1. You haven’t heard of “political hobbyism”?? That is what is causing the tribalism of today with people immersing themselves into echo chambers. So Republicans are like Francoists and value tradition and institutions like churches and the past except about one major area—the don’t like the media of the past…oh the irony. Of course prior to the Big 3 TV companies and one newspaper in every major city the media situation was very much like today and a reading of Francis Preston Blair Wikipedia page is a good place to start to get a picture of what it was like.

                1. The Democrats in 2000 didn't exhibit so much outrage because the Republicans didn't have Fox generating outrage as much then? Again, WTF?

                  1. Democrats didn’t understand that Bush was busting norms. Washington warned us about Bush, not Trump.

                    1. So, if only there had been a more large, effective GOP outrage machine the Democrats would have been more, what? I can't even...

                    2. Basically the right wing echo chamber blew their load on Bush…I hope it was worth it.

                    3. But you just said it wasn't developed then!

                      Again, I should just write WTF...

            2. You are very, very wrong. Limbaugh was already well-known by both sides in the 90s. Many gave him significant credit in the 1994 gains by Republicans. He was quite the thorn in the side during the scandals of the waning Clinton years.

              By the way, Democrats not knowing about a "right wing echo chamber" makes it sound like they were in an echo chamber, given that the whole point of an echo chamber is that you don't know what's going on outside it.

              1. The media environment changed and Democrats didn’t understand it—it’s called the “Overton Window”.

                1. Six more years of Limbaugh doing exactly what he had already been doing, Drudge being popular and then breaking the Lewinsky scandal, and they somehow didn't understand the media environment over all that time? It's a weird hagiography that's developed around him but I guess he'd be pleased. That's something that winners usually use to feel sanctimonious (2008, 2016) but this is the first time I've seen a loser comfort themselves with it.

                  1. I’m a 2016 version of Trump supporter—as long as the Bushes and Cheneys are losing I’m winning! Once BBB is passed and Roe is overturned America will be where it should have been had the 2000 election albeit with $10 trillion more in debt and thousands still suffering from the asinine wars and hundreds of communities destroyed by Bush selling us out to China.

              2. "Limbaugh was already well-known by both sides in the 90s. "

                Shortly after the 1994 election, Time [or maybe Newsweek] had a cover about Limbaugh being the "leader of the opposition".

            3. SC,
              Really? The Gore team was led by William Daley who be taught at his dad's knee all there is to know about sneaky politics, manipulating elections, etc. Daley was not surprised at anything done by James Baker. They played out a game that Daley lost, but trying to be too cute when demanding an immediate state-wide hand count would have been fair to all

            4. How was Florida supposed to reach some result? Revote the entire State? Is that fair to the rest of the States now that everyone knew how close the election was? Or just have certain areas of Florida revote? So much for fairness and the 14th amendment. I'm not sure there was any solution to what occurred in Florida other than the one they decided upon, and I have nothing but contempt for George W Bush who I consider the worst President since LBJ (who was a bit worse IMO). the problem is with big govt and trillions in money for the victor, both sides will do anything to win..downsize govt and perhaps this ends

          2. Moreover, Gore himself presided over the counting of the electoral votes. Under the Eastman "Theory," Gore could have simply tossed out Florida's votes and declared himself the winner and nobody could have done anything about it.

        2. George W Bush stole the 2000 election and then lied us into an asinine war all the while selling us out to China. But you nitwits got what you most desired—hundreds of thousands of slaughtered Muslims and marriage remaining between one man with one pee pee and one woman with one wee wee.

          1. The Florida election was a close call. Bush did his due diligence, just as Gore did. Bush won... barely, and only by the skin of the Electoral College's teeth.

            I did not vote for 'W' and would have preferred Gore. Bush was a nightmare for LGBT Americans.

            1. Katherine Harris stole the election for Bush—if you support recount requests which everyone is now on record as supporting after 2020 then you should believe Harris should have overseen a statewide recount and most studies have Gore winning a statewide recount.

              1. Sebastian, There were 3 statewide recounts. Gore lost all of them. Two of those were illegal as was the recount in 4 heavily Dem counties that was stopped by the USSC. The Florida Constitution allows only 1 recount and it has to statewide.

                1. If you support what Trump did in Georgia then you can’t support what happened in FL in 2000. But like I said—you got what you most desired with us spending $5 trillion to slaughter Muslims and marriage remaining between one man with one pee pee and one woman with one wee wee. Once BBB is passed all of the liberal initiatives we should have passed 20 years ago will be passed, so I don’t care about all the dumbassery of the last 20 years.

                  1. So....when presented about the errors of you r statements on the Florida recounts, your response is to talk about Georgia?

                    And if you really didn't care about the dumbassery of the last 20 years - why talk about it? The vehemence of your assertations shows otherwise.

                    1. You got what you desired most—we spent $5 trillion to slaughter hundreds of thousands of Muslims and marriage remains between one man with one pee pee and one woman with one wee wee. Walk tall!

          2. You're old enough to say "penis" now. I'll even allow "uterus" on this Christian site.

            1. One pee pee and one wee wee and it must be certified by a government official! That is how Jesus intended marriage!

          3. He didn't steal the election...stop that. The idiots who couldn't run an election in democratic/NYC'ish Miami were at fault. That said you get the gold star for the war comment. And please apply that to Obama and the US Congress for funding the 20 year war "bash" for Lockmart, NGO's, Goldman Sachs, and China. As for hundreds of thousands of dead Afghans and Iraqies and Libyans and Yemi's..well you have to break a few eggs...right?

      2. Hillary was quiet may be the most insane thing I've read all day. Congratulations.

        1. Love that his comes much later than David's comment right below.

    2. I wonder if this would have included Hillary's constant whining about Trump having stolen her election.

      You mean the Hillary that immediately conceded?

      1. No, I think he's referring to the Hillary whose staff started the Russian collusion hoax.

        1. No, that was the FBI, independently, and with procedures that have been checked many times by the inspector general, a Republican Senate (twice!) the House, and a sufficient predicate was found every time.

          1. Comey and Rosenstein are fairly typical Bush Republicans that range from grossly incompetent to mildly incompetent.

          2. It was Hillary's campaign that gave money to a PR firm that hired a discredited British intel agent (Steele) to fabricate a dossier and arrange for it to be leaked to the FBI as a Russian creation.

            That is where the FBI came into the picture. Even tho they had been forwarned by British intel that Steele was discredited and untrustworthy, the FBI applied to FISA for warrants based on the dossier. The FBI lied to FISA about having verified the intel in the dossier. Comey. McCabe, Struck, Page, all lied and worked to give the Russia collusion hoax the cloak of truth. It is to the GOP members shame that they chose to believe the lies of the FBI instead of doing their own checking. Make no mistake, there were GOP members that disliked Trump as much, or more, than the Dems.

            The FBI is corrupt. Rotten to it's core. And has been since the mid 60s, at least.

            1. The Steele dossier was
              1) not proven to be fabricated so much as dodgily sourced, and
              2) not why Trump was investigated.

              And some of the intel was verified.

          3. The IG found enough of a predicate for the initial investigation, but the investigation rapidly demonstrated that there was nothing there, and they kept it going by misleading the FISA court. Like telling the judge they'd interviewed one of the sources, and found him credible, but failing to tell the court their credible source had told them the dossier was a steaming heap.

            Apparently you'd rather forget that part.

            1. No, that's not what was demonstrated.

              There were absolutely bad practices found, but none were found to be material.

          4. No that isn't the case. There was no evidence to start the investigation. Stop that..

            1. Papadopoulos shot is mouth off and that was found to be sufficient over and over again.

              You need to do better than repeat what other people tell you.

  6. I guess this is my cue to repeat that I disagree with the result in United States v. Alvarez. I don't see how knowing lies can be constitutionally protected. On that basis I have no problem with anyone criminalising a particular category of knowing lies, as long as we are all agreed that the prosecution would, in fact, have to prove that the defendant knew that their statement was false.

    1. Laws against lying are no more reasonable than laws against conspiracies. Either there is an underlying criminal act which is already covered, or there is not. If lying or conspiring causes no harm, why is it criminal? If it causes harm, why is the criminal charge not enough?

      1. We make lying about commercial goods illegal. Why not the same about political candidates?

        1. 1)Because we don't want to be putting people in prison for saying Trump is a Nazi.

          2)Letting governments punish people for criticizing the government just has a really bad track record. I know, I know, this time it will be different, because we will always have benevolent governments that wouldn't dream about using such a law just to suppress critics. But the principles underlying out system of government are to try and have a system that works even when bad people occasionally come to power. Having as a first principle that you just can't punish political speech means you don't have to get into messy arguments about whether the king really is a fink.

          3)We - the population at large - are the ultimate decision makers. To do that, we need all the unfiltered information. If someone gets to filter what we hear, then we aren't in charge anymore - whoever does the filtering is.

          1. Letting governments punish people for criticizing the government . . .

            Is not what is under discussion here. What is under discussion here is not criticism, but lying, and is not about the government, but about an election—the result of which is a constitutive decree from the sovereign People.

            Inslee still has it too broad, though. See my comment below.

            1. "not criticism, but lying"
              Not a very big difference when a government wants to punish someone. For instance, in Xi'an the government has outrageously fucked up their lockdown. They told people they'd get to leave to get groceries, but then they couldn't. They told them they'd get free government food, which amounted to very little. They then demanded that recipients thank the government on camera. Through all of this they've been hitting criticism online very hard, making negative rumors punishable by two weeks in jail, no trial or hearings needed. Now that they have everybody thanking the government for great service they can claim those people are lying when they make future criticisms. Lying about government services is regarded as "stirring up trouble," which is its own crime in China and is punished quite strictly.

              If you think that's only possible in a state like China, consider how many Democrat voters actually believe that Russia hacked voting machines or otherwise directly manipulated the tally in 2016. How gleefully would Trump have gone after virtually anyone who posted something to that effect online? If he had won the election through political and legal maneuvering with his fraud claims, how would he deal with journalists claiming that there wasn't fraud, or even just not enough fraud to justify the outcome? It doesn't particularly matter if he wins as long as he can hurt his enemies in the process and we shouldn't give would-be rulers that opening, even if they're on "our" side.

            2. "What is under discussion here is not criticism, but lying"

              It's hard to believe you think that is a serious distinction.

              We're trying to design a system that is resilient in the face of bad people getting into power[1]. When you say the evil king is a fink, which is more likely:

              a)the evil king says 'fair enough, yes I am a fink'
              b)the evil king says 'I am not a fink, to the dungeons with you'

              [1]if you're assuming that bad people won't ever get into power, designing governments is easy, just have a dictatorship.

              1. In the end I think this is the winning argument. It's just hard to imagine a law like this where someone in power wouldn't abuse it. It's a tough call imho, but that's where it ends up.

                1. Exactly, you don't protect liars because you like liars. You protect 'liars' because when bad guys are in charge, everybody saying something they don't like is a 'liar'.

                  We don't have a system designed to run like a race car when everything goes right. We've got a system designed to putter along even when there's sugar in the gas tank and somebody yanked one of the spark plug wires. That's what a lot of people don't understand: Our government is designed to be survivable, not well run.

                  1. Like now. Everyone that criticizes the regime is a liar.

                  2. No. An inefficient government is in no one's interest. A better analogy is: this race car will run great, but only on the right tracks.

                    1. Your problem is that you're assuming that the government is always a force for good. That's, historically speaking, an insane assumption. In the last century, more people died at the hands of their own government, than at the hands of foreign governments.

                      Government is frequently a force for evil, sometimes even a genocidal monster. That's it's nature, really, once you get past the anodyne fables government teaches in the schools it runs for its own benefit: Government is nothing but a highly evolved protection racket.

                      There are tools a good government might use to good ends, but which are virtually indispensable for an evil government. Such as censorship. So we forego them at all times, to deny them to a government which is turning evil. And so that the government taking them up anyway can be a red flag to clarify when that is happening.

                      Censorship is one of those tools. Gun control another. Violations of privacy without good cause. There are others, but those are the big three, and our Constitution denies all three to government with good reason.

              2. It's hard to believe you think that is a serious distinction.

                It is the critical free speech distinction between opinion and fact.

                I am again disheartened to rediscover the critique-by-nostrum tendency which discussions about speech freedom seem to invoke. I never appreciate rightly how challenging speech freedom issues are, until I encounter folks who think them simple.

              3. It's hard to believe you think that is a serious distinction.

                Absaroka, in a libel suit it is a make-or-break distinction, the difference between protected opinion and punishable statement of false and damaging alleged facts. So a serious-enough distinction for any purpose, seems to me.

            3. Lying except under extremely narrow circumstances perjury, libel slander is free speech. Try again comrade.

              1. "Lying except under extremely narrow circumstances perjury, libel slander is free speech."

                Uh, *you* may want to try again...

                1. Back at you Queen, give me a circumstance

                  1. I'm mocking the terrible grammar of your comment...Your sentence as written is fairly incomprehensible.

          2. 1) This is already solved for commercial speech. Do we put people in jail for saying Coke tastes like balls?

            2) Elections are not the government. Plenty of motivated businesses who want to smear their competition and have lots of political clout, and yet this suppression does not happen.

            3) If the population at large is making decisions based on lies, that's a market failure.

            1. "1) This is already solved for commercial speech. Do we put people in jail for saying Coke tastes like balls?"

              We don't let *Coca Cola Inc* put people in jail for saying Pepsi is better. Why should we let the king put people in jail for saying the king is a fink?

              "2) Elections are not the government"

              You seem to be assuming a platonic ideal government wisely managing election discourse. I'm interested in preventing Stalin from sending me to the gulag for questioning whether he actually won 100.000000% of the votes.

              "3) If the population at large is making decisions based on lies, that's a market failure."

              As the saying goes, democracy is the worst form of government except for all the others. And a democracy where the populace only gets to hear government approved positions isn't a democracy, it's a rubber stamp.

              1. You really do seem to be mixing up a lie with name-calling. Are you making some kind of slippery slope argument but not saying so?

                1. No. I'm saying that if Stalin can put you in jail for lying, then you will end up in jail for saying 'Stalin's policies caused the Holodomor', because Stalin - more accurately, Stalin's courts - will decide it was a lie.

                  At the risk of reading between the lines, you're not worried about that because you have strong faith that the always neutral U.S. courts will accurately decide what is and isn't a lie. I have some reservations about that:

                  1)Even if the courts are that perfect, prosecutorial decisions are controlled by the executive. The process can be the punishment.

                  2)We time travel back to 2000. You say 'the Gore v Bush decision shows that the SC are a bunch of partisan hacks'. GWB has John Ashcroft arrest you for making a false statement about an election. Do you trust that same Supreme Court to give you a fair hearing?

                  3)Governments can swing pretty quickly - see how long it took the Nazis to completely upend Germany after the Weimar Republic.

                  4)I don't like chilling effects.

                  During the cold war, the US Navy had a philosophy called 'Forward Defense'. In short, they planned to fight the Soviet Navy in the Barents Sea, not the mid-Atlantic. That is also my philosophy for defending free speech. I remember 'Hustler' magazines floating around the dorms. They were really gross - but I don't want, say, John Ashcroft deciding where to draw the line between Sport Illustrated and Hustler, so I will fight to keep Hustler legal even though I think it is disgusting. I want people to be able to read Mein Kampf and Das Kapital, and I want people to be able to try and influence elections by saying 'Trump is a Nazi' even though it is a lie.

                  1. You have just laid out a slippery slope argument.

                    I'm not sure that follows necessarily.

                    Right now courts really have a high bar for proving intentional lying. I don't think it's at all clear that entire edifice would break down. Especially because the incentives have not shifted all that much from what corporations want to what the party in power wants.

                    There are lots of examples of the party in power being kept in check by internal controls right now. That's part of why people are so pissed at what Trump kept trying (and failing thank goodness) with the DoJ.

                    1. I tend to think of slippery slope arguments as 'A isn't that bad, but if we do A, that will make B easier, ..., and we get to Z'. But my objection isn't that Inslee's proposed law is OK but might lead to worse later - I think it is a terrible proposal all by itself.

                      But putting aside the taxonomy discussion, what's your best justification for this law? Let's say someone posts the following on facebook:

                      "We all know that elections are bought and paid for by big corporations, and that's what lampposts are made for!"

                      What do you view as the costs and benefits of letting the government put that guy in jail?

                  2. Absaroka, your argument is flawed because it rests on a truism: that a tyrant with evil intent can always do bad things. Whatever the state of speech law, that will remain true. You have posited a tyrant who can bypass the law. That truth is irrelevant to the question whether this legal policy or that one is the best choice to manage speech freedom.

                    Also, this:

                    "Elections are not the government"

                    You seem to be assuming a platonic ideal government wisely managing election discourse.

                    The distinction you seem to want to elide there is one which American constitutionalism cannot do without. There absolutely must be subordination of government to, "We the People." That subordination cannot be maintained if you concede a power in government to constrain the People's absolute power to determine election results.

                    1. Lathrop, your argument is flawed because it rests on a truism that safecrackers can always get into a safe eventually, so it doesn't matter whether the safe door is made of steel or tissue paper.

                      Sometimes making bad things less likely is a good thing.

                    2. Absaroka, for those who understand that analogies and metaphors are subject changes, you get counted as one of the most prolific subject changers commenting here.

                      For my commentary, I challenge you to stick to the subject, consider the issue in terms of the facts and circumstances actually presented, and see how you do.

        2. So "If you like your health care plan, you can keep it" can be criminalized?

          1. Once again to everyone, predictions about the future which do not come true are mistaken, but they are not lies. They are not lies even if the person saying them suspects they will not come true. They could be lies if the person saying them retained a power to make them false, and did so. But otherwise, no one thinks talk about what will happen tomorrow is anything but opinion.

            1. So if Trump had said "If we don't do anything Sleepy Joe will have stolen this election" it would be a simple mistake, not a lie?

              I also believe that Obama did lie when he said that. He knew that certain existing plans wouldn't be permissible under the mandate and he certainly anticipated that it would disturb the industry quite a bit, which necessarily means somebody has to lose a plan. He's not naive so there's no way he thought that the only plans that would be lost in the shake-up were the plans people didn't want to keep.

              1. Millions (roughly 8MM) lost their coverage with the passage of PPACA.

            2. "Once again to everyone, predictions about the future which do not come true are mistaken, but they are not lies."

              Except that we know there were internal discussions, they knew it wasn't true when he was saying it. Not speculation, amply documented, and accepted even by outlets that give the benefit of the doubt to Democrats; In this case, there simply wasn't any doubt that they knew it wasn't true.

              Obama admin. knew millions could not keep their health insurance

              So, yeah, it wasn't a mistaken prediction, it was in fact a "lie".

              1. This article is not the same as proving intent.

                1. Sure, maybe he knew it wasn't true, and when he involuntarily coughed it just came out, "If you like your policy you can keep it."

                  Don't be fatuous, Sarcastro. Of course it was intent to lie. He knew it wasn't true, had a hand in making sure it wouldn't be true, and kept saying it, over and over. If you can't call that a lie, when could you call an objectively false statement the speaker knows to be false, a lie?

                  Even Snopes stopped defending this lie. Even Snopes. Have you less scruples even than Snopes?

                  1. I'm not saying it was true, I'm saying you have not established it was a lie.

                    That you moved on to moralizing and appeals to incredulity shows how little actual evidence you have (or need).

                    1. I'm incredulous that you have the cast iron gall to set the burden of proof so impossibly high that we'd have to be able to read his mind to know he was lying.

                      Though, granted, I suppose I shouldn't be incredulous, you are that sort of guy these days.

                    2. If your threshold is that zero people will be unable to keep their doctor, that's silly. But it was at the time not unrealistic that the vast majority would have their situations unchanged come implementation.

                      You're relying on no evidence, just 'it's obvious, man!' Which is either you editing history, or just not engaging at all. Probably a bit of both.

                    3. I'm relying on the same evidence that persuaded Snopes and other 'fact' checkers, ones with long records of cutting Democrats every available bit of slack, that Obama had actually been lying. That made Obama's much repeated statement their "lie of the year".

                      He didn't just say this once, remember. He kept saying it even as the policies that would cause the cancellations were being drafted, and put into effect, and cancellation letters were being mailed out. He kept saying it long after he knew that it wasn't true.

                    4. Bellmore, oops. "The policies that would cause the cancellations." Care to reframe that sentence? Put in something to tell us who did the cancelling, for instance?

            3. Sure, SL, it's just a mistake when the speaker had complete control over what was done subsequently The excuse does not wash.

              1. Nico, what was done subsequently was far more under control of state governors, the courts, and insurance companies than it was under control of Obama.

          2. Good one, see we only want to actually enforce this law against those who disagree with a Democratic party regime. Like civil rights protects everyone against racial discrimination. RigGGGGGHT sure!

            No it doesn't. It is a means for blacks to make claims of racial discrimination that's it.

            1. Yeah, it's always 'the blacks.'

        3. If you're actually wondering why, it's because "commercial speech" has been regulated as unprotected (to at least some degree) since the mid-20th century, to the consternation of many justices. Speech about political candidates is not usually commercial so it's regarded as protected speech.

        4. Because lying about commercial goods is fraud that results in people paying money for things under false pretenses. Not do with political candidates.

          1. Uh, there's all kinds of money at stake from political lying (and, of course, other things of value).

            1. How would one ever prove damages from political lying? Commercial fraud is straightforward. It's easy to say, "They told me that this horse dewormer would cure covid, and so I paid $5,000 for it and it didn't, so I'm out $5,000 and also I died of covid."

              But what's the causal connection between a lie about a candidate and damages? If the lie hadn't been told, the other guy would've won the election, and he'd have supported a bill that would've been economically beneficial to you? Speculative on all fronts.

              1. "so I'm out $5,000 and also I died of covid."

                And this claim is being brought from the great beyond? Or by the deceased's estate?

                1. The latter, I assume, but they lose because they didn't get horse dewormer, they got the human prescription grade drug.

                  Just like you sue your doctor for giving you rat poison, he wins if he prescribed warfarin.

              2. Let's say a popular candidate or official says 'Mexicans are rapists and drug dealers.' And a Mexican goes to enter into a contract but the other side says 'hey, you're a Mexican? Well, I've heard y'all are rapists and drug dealers!'

                1. It's deeply ironic to offer up a lie about somebody saying something as an example of that somebody lying. Trump never said that Mexicans were rapists and drug dealers, but only that some of the illegal immigrants from Mexico were. Which is indisputably true.

              3. Also, David, we've seen this under current law. "Georgia election official David N. allowed/committed fraud." David loses position and/or opportunities based on this lie. Suit.

        5. If you take away lying about political candidates, there would almost nothing left of all that is said about political candidates.

          Ok you've convinced me.

        6. We make lying about an individual that harms them punishable via defamation, but public figures can harmfully defame entire groups, races, religions, etc., and yet there is no remedy there.

        7. Sure. As long as we make lying BY political candidates illegal in the same law. And we should start charging them with perjury when they violate their oath of office by introducing and voting for laws that violate the Constitution.

      2. "If lying or conspiring causes no harm, why is it criminal?"

        Lying is harm per se.

        1. Sorry, Kant: you're dead.

          1. That Kant be true.

    2. "I don't see"
      Pack it up guys. I just noticed that the full text reads "...or abridging the freedom of speech (except when the speech contains lies)..."

      But seriously, I don't see how you can come to that conclusion. The government has tolerated many, many lies since the Founders without finding an exception based solely on the fact that they are lies. Some lies cause damage: those have been illegal in the past (and currently in some places). They can also prompt civil cases when damages exist. But they are based on pseudo-individuals lying about each other and not intended for a crank misleading people into thinking that he's made a perpetual motion machine or a crank insisting that he's the rightful ruler of the US. Ascertaining damages is difficult in that case; I'm sure that many people think rampant skepticism in the process is a good thing and we wouldn't want the government itself to decide on its own damages from political opponents.

    3. Even the dissent in Alvarez noted

      there are broad areas in which any attempt by the state to penalize purportedly false speech would present a grave and unacceptable danger of suppressing truthful speech. Laws restricting false statements about philosophy, religion, history, the social sciences, the arts, and other matters of public concern would present such a threat. The point is not that there is no such thing as truth or falsity in these areas or that the truth is always impossible to ascertain, but rather that it is perilous to permit the state to be the arbiter of truth.

      My first reaction is elections are covered by this statement and how could you ever craft a law that confines itself to objective statements of fact where the state can be trusted to determine the truth.

  7. 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

    We wait with baited breath to see how they can draft a law with such limitations. I doubt they can with the clarity needed to satisfy Due Process.

    1. Shouldn't there be some kind of breath freshener called, "Baited Breath?"

      1. I suppose tic tacs produce baited breath. I tend to wait with 'bated breath, instead.

        1. I was trying to avoid pedantry, not invite it. I should have thought better of it.

  8. I wonder if the Dems are going to write themselves a carve-out in the law so they can continue accusing Republicans of voter suppression for trying to remove dead voters from the rolls? Would be quite the own-goal if they didn't.

  9. We did have lies about an election and they did provoke violence, remember?

      1. Yeah, that Brooks Brothers thing was ugly.

        1. Yep, totally outta control it was. I mean, their shoes were scuffed up! 🙂

          1. I still sometimes have wet dreams at the thought of “shock and awe” and all those Muslims we slaughtered…totes worth helping Bush steal the election.

    1. Who are you reminding? Volokh mentioned it: "can at times lead, have at times led, and will at times lead to criminal violence."

    2. Indeed. In 2016. Much violence.

  10. Volokh mentioned it: "can at times lead, have at times led, and will at times lead to criminal violence."

    What Volokh did not mention were any such lies having been uttered by Trump.

    What's broken, beyond 1A concerns, in the entire concept being pushed by Inslee is that none of the statements he's aiming at were deliberate lies.

    1. The entire Kraken mess was all lies. Even if the deluded masses following the drama believed it, the lawyers presenting it in court did not.

      Also, there this (and more like it):
      On January 6, 2021: “We will never give up. We will never concede. It doesn’t happen. You don’t concede when there’s theft involved,” Trump told the crowd to whoops and loud cheers, falsely claiming that President-elect Joe Biden’s victory was based on fraudulent vote counts. “We won this election, and we won it by a landslide. This was not a close election.”

      Trump, by his own position as president and de facto leader of his party, had access to all the facts and potential evidence regarding the November elections. He's repeated that lie since Jan 6th as well, at least once on Fox news in February 2021 after the death of Limbaugh.

      "Rush felt we won and he was quite angry about it. And so do I, by the way, I think we won substantially.” -- Donald Trump

      1. The entire Kraken mess was all lies.

        No, it wasn't lies. Rather, they claimed fraud, but provided no evidence of fraud. That doesn't mean they were lying. It does mean that they had nonsense as a legal case.

        They did provide evidence of irregularity, which might have enabled fraud, but they had no evidence of fraud. You and I might use the fact that they couldn't find evidence of fraud as evidence that there was no fraud, but that's not the way evidence works.

        1. Filing in court requires signing stuff saying you have a case. They didn't have a case.

          1. As I said above, this is like you claim your accountant embezzled. The court asks for evidence, and you demonstrate that he burned the account books. The court then throws out the case because there are no account books proving embezzlement.

            Maybe this is a correct legal standard, because any doubt goes to the side of innocence. But it doesn't render believing you were embezzled irrational.

            The Republicans were arguing, essentially, spoliation. That elections authorities taking actions that would render fraud unprovable if it happened should, itself, be taken as evidence of fraud.

            1. I can point to cases in local elections where this was considered enough to justify throwing out the results of an election, and holding it over again. Just on the basis that you couldn't prove who won one way or another on account of too many votes being dubious. Not proven fraudulent in favor of a particular party, but just not trustworthy.

              Trump's problem was that there are no re-does for Presidential elections, so the courts saw no plausible remedy. So they weren't going to act absent absolutely iron clad proof that Trump was the real winner. And all he had any prospect of proving was that enough ballots were dodgy that he might have been.

              Not enough to reverse an election, but plenty for people to think they were cheated.

              1. The Kraken provided no evidence of spoliation.

                And no, the facts established would not have flown to throw out a local election either. *because no facts at all were established* the evidence in the record was not germane, or clearly spurious.

                You have either your facts or your law incorrect.

                1. They absolutely proved broken chains of custody, and election observers being prevented from doing their jobs.

  11. This is a stupid idea for a law. The fact is that with a few exceptions few Republicans are saying the 2020 election is stolen. What they are instead doing, as politicians often do, is spin a statement to leave an impression of a falsehood. Few politicians will say the election was stolen and rather say "there are irregularities that cause people to question the results." They could not be prosecuted for lying but might be prosecuted for not telling the truth, assuming you could prosecute that.

    1. The titular head of the GOP says it all the time.

      1. The former President is one of the few exceptions. The real concern is not him but those that perpetuate his lie, by an unwillingness to call it out. A law could not remedy this situation.

        1. Uh, the former President and Presidential candidate and still uber-popular figure in the party saying this is kind of a big, distinction level deal.

  12. Good we can arrest the entire Democrat party for undermining confidence in the 2016 election

    1. Lol. Some argue that 'whataboutism' or 'bothsides' are poor arguments. Maybe. But at the very least they need to be about, well, somewhat *comparable* what abouts and sides.

      1. A large number of Democrats actually think that voting machines or the vote tallies were directly manipulated by Russian agents. That is certainly comparable to Republicans claiming that voting tallies were directly manipulated by Democrat agents.

        1. Does saying it’s so make it so?

          There was once a so-called Republican who said that calling a tail a leg didn’t make it a leg.

          But I recognize today he would be recognized as a RINO, totally against the party’s values.

          1. Saying what's so makes what so? And why should I care what a Republican thinks?

          2. No, but calling it a lie with legal consequences means it's a lie in both cases or this is just a grab to shield Democrats from criticism and consequences.

        2. The number and influence of Democrats who think such a thing <<<< the number of GOP doing something comparable. The GOP candidate and President at the time regularly said and says the election was stolen in the crudest ways, 100 GOP Congresscritters parroted the idea, polls show huge amounts of GOPers still think this, etc., etc.,

          It's not the ludicrousness of the charges of fraud that need to be comparable, it's how mainstream the former are in each party (popular and officially) that's asymmetric.

          1. You are incorrect on the number, both incorrect beliefs held 2/3s of their respective parties' minds two years on: https://today.yougov.com/topics/politics/articles-reports/2018/03/09/russias-impact-election-seen-through-partisan-eyes
            It is a mainstream idea in the Democratic Party and the reason that few Democrats online know it is because they forget that the voting base overall is not as online or "tuned in" as themselves.

            1. I'm comparing Dems in 2016-18ish to GOPers now (2020-noW). Also, I notice you chose only one of my three listed comparison points...

              1. I don't need to convince you that they are the same, only that you were wrong in how mainstream it was in the general population and therefore they are "somewhat comparable."

                1. Except general population was only one of my three stated criteria, right? And even there you're losing.

          2. "The number and influence of Democrats who think such a thing <<<< the number of GOP doing something comparable."

            Okay challenge accepted. Lets test your hypothesis quantitatively.

            Googling 2020 election stolen gives you 36 million results. Most of the top ones at least are incredibly hostile to the claim. So it pretty much automatically counts for the other side

            Googling 2016 election stolen gives you 27 million hits which is not quite <<<<<<<< and impressive for a much older election. In addition the articles are far more neutral if not supportive of the 2016 election stolen theory. Don't take my word for it folks look it up yourself.

            1. Lol, 'ok, I'm taking a very truncated view of your multi-pronged claim, and, uh, yeah there's many millions more against me, but, uh, some of these seem biased more than the others I see, so, uh, CHECKMATE LIB!'

  13. I think the argument against Professor Volokh’s position is straightforward. How close to dying of thirst are willing to get before you are willing to drink imperfectly pure water that carries an increased cancer risk, in order to see the next sunrise alive?

    That is, Professor Volokh’s position is fependent on being certain there is no risk on the other side, so even a slight risk of the evil he is concerned about justifies protecting against it.

    If every time a guilty man was let free we could be certain he would utterly destroy a city of millions and kill them all, we wouldn’t be so quick to let guilty men free in order to avoid the risk of convicting an innocent one. We’d be willing to take more risks in that direction.

    Professor Volokh’s position is built on a similar confidence that allowing a harm won’t result in killing us all.

    What if we can’t be so confident? What then?

    1. EV is certainly smart, but him and others who believe in a kind of free speech mantra really do tend to discount the other side of the equation in this debate. They wield such phrases such as 'marketplace of ideas,' 'the remedy for bad speech is more good speech, 'words will never hurt me,' etc., in talismanic ways.

      A growing number of people (at least on the left) are not starting to question this mantra because 'the weaker one's argument is the more one turns to censorship.' It's because they are looking at historical/sociological facts in an empirical way and see things like that the genocide in Rwanda was significantly spurred by hate speech on radio broadcasts, that 'hate speech' seems to lead to murderous mass shootings and such at times, etc., etc., and for people who are more vulnerable to the harm that speech can produce the repetition of the abstract mantras supra no longer work to relieve their concern.

      1. A growing number of people on the left are morons. Of course one can look and find historical examples of speech leading to bad outcomes. But there's a lot more historical examples of government using claims of harms to suppress legitimate political criticism.

        I keep arguing on twitter with liberal idiots who think the FCC can shut Fox News down as "propaganda." Setting aside that the FCC doesn't have jurisdiction over a cable channel, it's like they've forgotten that for four years there was someone running the federal government who called the NYT "fake news." Do they think that if Trump had the legal authority to shut down media outlets for being "propaganda," that he wouldn't have used it?

        1. "Of course one can look and find historical examples of speech leading to bad outcomes. But there's a lot more historical examples of government using claims of harms to suppress legitimate political criticism."

          Well, at least you seem to acknowledge this is an *empirical* debate, one that can't be solved by the lazy repetition of mantras.

          I tend to agree with you. But, I don't think it's such an easy call. And were you Tutsi and saw the equation differently I'd not be quick to call you a moron.

        2. Wait David....do you really waste your time there?

          I would suggest you drop Twitter, and spend more time here. 🙂

      2. The problem in Rwanda wasn't freedom of speech, the problem was that the radios were running government-directed anti-Tutsi propaganda. The government decided that the existing station was too liberal so they made a new one, let it use their equipment, and funded it through their own funds and the funds of a businessman connected to the party. There were existing laws against hurtful propaganda. The government was all-around evil and it had little to do with free speech.

        1. So, to be clear, you concede that the radio hate speech played a significant part in spurring genocide? You're rebuttal is that government was the perp here.

          So, the reason why this strikes me as, arguendo, as a very pedantic point is, surely I can point to a non-governmental source of hate speech example and/or the abstract idea of the same, right?

  14. It ought to be a criminal offense to refer to the events of January 6, 2021 as an "Insurrection" which is just outright dishonest and wrong. Punishable by having to look at naked pictures of Nancy Pelosi.

    1. How is it dishonest and wrong? It was an attempt to use violence to stop a process for the peaceful transfer of executive power.

      Also, your other comment is interesting/telling. Nancy Pelosi is 81 years old. Are you usually in the vein of wanting to see pictures of 81 year old women? If not, that seems to be an odd 'go to.'

      Pelosi seems to have been a fairly attractive woman when she was younger (https://www.businessinsider.com/politicians-young-high-school-2013-3 ). But, again, one wonders why this was a 'go to' for you. Do you imagine a naked Donald Trump or Mitch McConnell to be more pleasurable for you (and, of course, therefore others)? Heck, Mitch seems worse off even in his younger years (https://www.npr.org/2020/11/17/935889300/essential-mitch-the-early-years).

      1. Queen, would you also call the protestors barging onto the Senate floor to prevent the constitutionally mandated advise and consent function during the Kavanaugh hearings an insurrection? The J^ protestors did not make it the floor of either chamber and did not even slow down the transfer of power.

        1. No, because:
          1. Far fewer protestors
          2. Far less violent/obstructionist tactics
          3. Far less important position at stake
          4. Far less important procedure at stake

          FWIW if I were the decision maker there I would have arrested, charged and prosecuted them all at the hearing. But I really can't imagine, other than partisan leanings, how you can suggest they're comparable.

          1. Both groups were intending to interfere with a constitutionally mandated action of the Congress.

            1 Is the number of protestors a determinate for the actions qualifying as an insurrection? How large of a group is required? The total number disrupting the Kavanaugh hearing is unknown.

            2 How much of the violence was committed by the J6 protestors? The only death was by an armed security officer shooting an unarmed protestor. What level of violence is required before disruption becomes insurrection?

            3 Far less important? How is one Constitutionally mandated action more important than any other? A USSC justice makes decisions that affect the way the entire country will be lawfully run. Notice the importance of the hearings and upcoming rulings on the Texas abortion laws.

            4 I would suggest that a USSC justice is a more important function than a president. The latter lasts only 8 years (at most), a justice can exert influence for decades.

            I agree with you that the J6 protestors should have been arrested and charged. I think calling it insurrection is over the top hyperbole.

          2. I also believe calling it a protest that got out of hand in over the top dismissive. Makes it sound like a teen party at the house of the kid whose parents are out of town.

      2. It was called a "joke" Queenie, something that went way above your head...

  15. Inslee has this wrong. But the comparison to seditious libel is also wrong. The problem is that a power to punish so-called seditious libel is a power to punish opinion. This nation has wisely cast its lot with a notion that freedom of opinion should be absolute, not even subject to libel laws.

    People may have opinions about the truth or falsehood of election criticisms, but the problem Inslee addresses is not really about opinions. Although I doubt he thinks of it this way, Inslee is trying to address a problem akin to the feudal notion of high treason—which in general terms means disloyalty to a sovereign by someone who has sworn an oath to defend the sovereign.

    Of course this nation is not feudal, and has no law against high treason, nor should it have. Inslee's remarks do suggest this question: does this nation need something like that kind of law, but much narrowed in terms—with the conduct to be punished notably less broad and more exactingly described—and persons subject to the law specifically limited and self-selected? I think the answer to that question is yes.

    As a practical matter, former President Trump has inflicted on the U.S. a high-treason-type problem. Look at Trump's case by analogy to the feudal notion. An election result is not at all an opinion, nor is it even a mere disputable fact. It is, first and foremost, a sovereign decree. After constitution-drafting, an election is the principal means by which the People exercise their sovereign constitutive power, and thereby control government. They do so by choosing who shall run government, announcing that decision publicly, and demanding that their power to decree that result be obeyed. It is a power that they must defend jealously, lest rivals for sovereignty appear, and attempt to undermine the People's sole prerogative.

    That last is exactly what former President Trump has done. By attempts to throw down the People's decree in the case of an election result against him, Trump has set himself up as a rival to the sovereign People for control of government of this nation. It is that act to rival the sovereign that should become criminal conduct.

    How to do that without burdening freedom of opinion? Make it explicitly the law that an election result may be contested by anyone, until the final announcement that legal process is complete, the counting done, and the result decreed. After that happens, let people who are not under any special obligation to support and defend the election result continue to criticize and voice their opinions without any time limit, or any other hindrance.

    But make it also explicitly the law that any person who runs for any elective office, or who participates in election administration, or who under color of law purports to set the terms for conducting an election, be sworn to an oath which requires defense of, and support for, a completed and announced election result. And which further requires sworn allegiance to the sovereign People's sole power to decide election results by casting their votes.

    Make breaking that oath the crime to be punished.

    1. I think the answer to that question is yes.

      Wait, Lathrop supports censorship? It must be a day ending in "y"!

      As a practical matter, former President Trump has inflicted on the U.S. a high-treason-type problem. Look at Trump's case by analogy to the feudal notion. An election result is not at all an opinion, nor is it even a mere disputable fact. It is, first and foremost, a sovereign decree.

      No, it's a disputable fact.

      How can the "sovereign decree" be that (e.g.) Biden won, if in fact the sovereigns voted to elect Trump and some corrupt elections officials stole it?

      1. (It should be obvious from my many comments on the topic that the last question is hypothetical; there is zero evidence for that conspiracy theory.)

      2. He supports censorship of his political opponents. Clarification

        1. My political opponents choose themselves. Show where anything I advocated would not apply alike across the political spectrum. Your accusation is noxious, stupid, and unsupported by anything I wrote.

      3. This nation has wisely cast its lot with a notion that freedom of opinion should be absolute, not even subject to libel laws.

        From my comment above, Nieporent. Note also that the quote of me you included contradicts, "No, it's a disputable fact." I did not say it wasn't.

        Looks like you dialed tendentious and incoherent into your autopilot. Where do you guess that will take you?

        Also, while you took your nap at the controls, you missed that only folks who choose to take personal responsibility for denying election outcomes could be disciplined—and then only after an interval of impunity long enough to protest the election, just as Trump did before January 6. The obligation to shut up—applied only to folks who voluntarily swear to shut up—starts after that. Rules for everyone else remain the same as today.

    2. By attempts to throw down the People's decree in the case of an election result against him, Trump has set himself up as a rival to the sovereign People for control of government of this nation. It is that act to rival the sovereign that should become criminal conduct.

      The Russian collusion stuff was the best example of your concern.

      Total fraud, but a serious effort to take Trump down as president.

  16. This is all based on well established Russian, Chinese and North Koran law so its good

    1. wreckinball, you seem to comment with an eye to winning the admiration of especially stupid bystanders.

  17. Blah blah blah blah blah blah to a law that amounts to we want to make it illegal for our political opponents to criticize elections.

    Read 1A. Seems pretty absolute. Things that are free speech, except under very very narrow circumstances:

    hate speech
    racist speech
    lying

    1A's main purpose was to allow free political speech. So yea this is unconstitutional;

    1. " Read 1A. Seems pretty absolute. "

      These points (and others) seem destined to shock your absolutist sensibilities:

      Child pornography

      Defamation

      Criminal solicitation

      Restrictions on speech related to securities

      Perjury

      True threats

      Copyright violation

      Blackmail

    2. Read 1A. Seems pretty absolute. Things that are free speech, except under very very narrow circumstances:
      hate speech
      racist speech
      lying

      Do you even read this blog? I'm asking because Prof. Volokh regularly posts cases holding that neither "hate speech" nor "racist speech" are recognized as exceptions to freedom of speech. Lying in general isn't recognized as an exception; lying about someone might be, depending on who it is and what is said.

  18. Vegas has people watching their tables and when they see someone continuing defying he odds they take interest. because you know that isn't normal. Because duh it realty doesn't happen.

    2020 election defied the odds. Five swing states just stopped counting with Trump ahead. Five swing states started some "shenanigans" (oh I know it was jus tom foolery) and voila huge step changes for Biden at the opening bell in the morning.

    I mean can you imagine such a streak! No, Vegas bouncers would have tossed you

    1. Sigh. A disproportionate number of Democrats voted by mail. Republicans deliberately refused in those states to let the mail votes be precanvassed, so it took much longer to count those. This was known long before election day.

      1. I can't speak for any of the swing states but in our state, by statute they cannot start counting absentee or "early votes" until the polls close. This is in part to allow the counters to remove any ballots that were mailed in by people who also voted in person on Election Day.

        1. That's been the justification for barring early counting of absentee ballots everywhere I've seen it done: The person may actually show up to vote.

    2. "Vegas has people watching their tables and when they see someone continuing defying he odds they take interest. because you know that isn't normal. Because duh it realty doesn't happen.
      2020 election defied the odds. Five swing states just stopped counting with Trump ahead. Five swing states started some "shenanigans" (oh I know it was jus tom foolery) and voila huge step changes for Biden at the opening bell in the morning. I mean can you imagine such a streak! No, Vegas bouncers would have tossed you"

      This is profoundly stupid and uninformed . . . and the work of the precise target audience of a White, male, right-wing blog.

  19. Oh, so we will hand over the power to suppress free speech on the basis of their arbitrary designation that something said is not true, to state governors.

    What could possibly go wrong?

    1. > we will hand over the power to suppress free speech on the basis of their arbitrary designation that something said is not true

      That is how the modern public forums of Twitter, Facebook, and the rest of social media work.

      Don't worry they are guided in this by Congress, who will summons their CEOs to appear fi they don't think the Big Tech companies are censoring enough.

      Easy enough to get around 1A, if we just outsource the censorship.

      1. momo, you have that wrong. The arbitrary principle they assert is that they have a 1A-protected editorial power to publish what they please, and to omit what displeases them.

        Also, editing is not censorship. The difference is that would-be content edited out of one publication may freely appear in another. Thus, publication of the content may be inconvenienced by editing, but not suppressed. By contrast, censorship involves government power, employed either to suppress content completely, or at least to restrict by government decision—instead of private editorial decisions—which audiences may receive the material.

        Those are critically different practices. Private editing is protected by the 1A, government censorship is mostly outlawed by the 1A.

        1. And private editing coerced by government threats becomes government censorship.

  20. ""January 6 is a reminder not only of the insurrection that happened one year ago, but that there is an ongoing coup attempt by candidates and elected officials to overturn our democracy. They are willing to do this by provoking violence, and today I proposed we do something about that in Washington."

    "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. 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,"

    Hypothetically speaking, do Inslee's own words here potentially fall afoul of his proposed law?

    1. According to the legal charges there was no insurrection on January 6th. Not a single person was charged with insurrection. Therefore, according to at least one measure, Inslee is knowingly lying.

    2. Since the lie is in regards to the election process, around the certification, and may cause violence, potentially he could be liable.

  21. Inslee is off base to seek criminal penalties. But I hope that the civil damages actions against Trump and other for the January 6 riot proceed and are prosecuted vigorously. https://www.nytimes.com/2022/01/10/us/politics/trump-jan-6-lawsuits.html

    1. Here is one of the pleadings under consideration on the motion to dismiss. https://www.cohenmilstein.com/sites/default/files/Thompson%20v.%20Trump%20Amended%20Complaint%20filed%204-7-2021.pdf

      It takes brass balls to contend that that amended complaint fails to aver facts and circumstances beyond the lawful ambit of a president´s official duties.

  22. Let's see how far the free speech absolutists will go. Imagine this:

    At the state capitol, the time comes for Democratic electors to convene, and cast their votes pursuant to their responsibilities from the just-completed election. That they do, concluding on the basis of the state vote count that Biden/Harris get the state's electoral votes, and then filling out various forms attesting to their actions, and forwarding multiple copies to Washington, for use in Congress, the National Archives, etc.

    At the same time, in another room in the state Capitol building, a group of Republicans meet, in secret, to claim fraudulently that they are the legitimate electors. Their procedures mirror those of the others, right down to the appearance of the forms they fill out, and forward to the same D.C. addresses. But these lying "electors," award their, "votes," to Trump/Pence.

    All okay with free speech fundamentalists? Everyone has a right to speak his mind? It's all protected by the 1A? Let's hear it from the free speech utopians, how the remedy for bad speech is more speech. Here you have it. Speech doubled. Twice as good?

    1. I'm not a freedom of speech absolutist. However, we protect unworthy speech because otherwise worthy speech could be unprotected. Do you trust the government to decide what is a lie about whether there is electoral fraud? Before you answer, imagine Trump is president and he controls the Justice Department.

      1. Josh, address the example, please—the one about creating false documents attesting false electoral college results. I really want to know what folks think about that example.

        1. Of course it's bad that such false documents were created. But if we prosecute, it could be worse because it opens up the possibility that government prosecutes someone on trumped up charges that valid documents are false.

          1. So no limits on forged documents certifying elections, because bad guys could punish valid documents? What do you suppose that kind of bad guy would do to opponents without the valid documents?

            By the way, I am unclear whether you know that my example is not a hypothetical.

            1. Of course forged documents (documents that falsely claim to be endorsed by a specifically-named authority) can be criminally punished. I read your hypothetical differently: the false documents are not claimed to be endorsed by an authority who didn't endorse them, but rather by a shadow authority the creators claim legally suffices.

            2. Having now read the details of what happened in Arizona, Michigan and Wisconsin, all three attempts were fraud, not protected by the First Amendment. Each one claimed to use official forms for certification of electors and they were all forgeries.

              1. Good on you Josh R. Thank you. Should the perpetrators go to prison?

                1. I can't answer because I am not familiar with each state's or federal laws concerning such fraud.

        2. The false documents story is a story about a conspiracy to defraud.
          Such conspiracies are not protected by 1A.
          The is no double speech. Hypothetical denied

          1. Nico, I did not claim it was hypothetical. It is not hypothetical. In three states: Arizona, Michigan, and Wisconsin, Republicans did exactly what I described. Those are the ones who have so far been discovered. Maybe more will come to light elsewhere.

            So can I have your free speech opinion? Is doing that a protected speech protest against a contested election? Or should it be prosecuted by the Justice Department as fraud, conspiracy, and probably other crimes? Should people who signed fake electoral college documents under fake state seals go to jail?

    2. "All okay with free speech fundamentalists? Everyone has a right to speak his mind? It's all protected by the 1A?"

      Sure, why wouldn't it be?

      I'll go a lot further than they did: I just convened a meeting of the Supreme Ruling Council (consisting of the pooch and I) and we hereby issue the following edict: you all belong to us now.

      What should the legal system do about this naked power grab? It should take exactly the same action as it should for your legislators - ignore the whackos. If congress gets multiple election results, it has to decide which are real and which are bogus, and discard the bogus ones. At that point the problem is solved.

      1. Sure, why wouldn't it be?

        If congress gets multiple election results, it has to decide which are real and which are bogus, and discard the bogus ones. At that point the problem is solved.

        Problem solved?! Are you out of your mind? The fraud you so lightly dismiss potentially takes the election outcome out of the hands of the electoral college majority, and puts it instead into the hands of congress. That could empower congress to decide the election state-by-state, with each state getting one vote. It potentially swings the election, and you think, "No problem?"

        Looked at using logical inference, the fraud in this case was intended to deliver exactly that outcome. Every person who put his name to fake electoral college returns should go to prison. I wonder if any of those fake electors were members of congress. Probably not, would be my guess. Republican congress people would let suckers be the fall guys.

        I am not surprised to see defense of bogus 1A protections extended to this extreme. I am surprised to see it confessed.

  23. Nieporent, you have been dodging points in my comments which you apparently do not wish to consider, to go back instead, again and again, to repeat your false charge that I oppose free speech. For instance when I wrote this, you ignored it:

    By attempts to throw down the People's decree in the case of an election result against him, Trump has set himself up as a rival to the sovereign People for control of government of this nation. It is that act to rival the sovereign that should become criminal conduct.

    Nothing substantive to say?

    1. That it, is clear you are no constitutional law expect

    2. To quote Congressman Wilson, "You lie!" Not only do I not "dodge" your points, but I spend far too long responding to them, and then you always run and hide. Or you just deny that you said the exact words you said.

      For example, above: you oppose free speech. Always. Every single topic on Volokh for which free speech is an issue, you come down on the side of censorship. Student free speech. Citizens United. § 230. Copyright fair use. Picketing in front of vaccination facilities. Here. Book burning.

      I don't know what you think is special about those words that you quoted that you think I need to address. Every would-be censor comes up with some excuse for why the thing he wants to censor doesn't really count as censorship. You here are arguing that a candidate continuing to criticize an election result is criminal, by relabeling such criticism as "attempts to throw down the People's decree," which is basically gibberish anyway.

      Of course there are many things that someone could do to contest an election result that could be criminal. (Like 1/6.) And Trump can be accused of many of them. But your position is that mere verbal criticism by a candidate is criminal: "But make it also explicitly the law that any person who runs for any elective office, or who participates in election administration, or who under color of law purports to set the terms for conducting an election, be sworn to an oath which requires defense of, and support for, a completed and announced election result."

      1. Nieporent, once again you define your own idiosyncratic views on speech freedom, and excoriate as an enemy of free speech anyone who will not endorse your views as inviolable. Once again you refuse to engage substantively on the question whether an election is a sovereign decree, which a losing candidate ought not be free to ignore. Once again, you cover that obfuscation with a claim that it is defense of speech freedom.

        So per Nieporent, a person may court the People's mandate to govern, but if he does not get it, he may freely initiate a contest against the People to overthrow them, and defeat by usurpation the People's choice of someone else. The sovereign People are thus rendered powerless, because their own decree of speech freedom paradoxically ties their hands, and forces them to submit to that losing candidate's attacks, however damaging, on their power to control government—so says Nieporent.

        The People may no longer control government, because the losing candidate was empowered by the People themselves to seize government, and use it to control the People. That is what Nieporent foolishly thinks the People promised. That is what Nieporent paradoxically thinks government acting in defiance of the People can compel. Nieporent has not thought any of that through, of course.

        Nieporent, government can never constrain the sovereign. To insist otherwise is to turn the fundamental principle of American constitutionalism on its head.

        Because you fancy yourself a libertarian, you are powerless to engage. You are stuck. You adhere to a philosophy which not only lacks its own theory of government, but which also denies the legitimacy of all theories of government. Thus, like most libertarians, you have no reasoning or evidence to explain where government comes from, or what makes it legitimate. Government to you is just something to treat as a foil for utopian critiques—critiques that among libertarians stand in for that missing theory of government.

        On questions of where rights come from, or how they can be vindicated, libertarianism has nothing to offer but paradoxes and mysteries. That leaves a lot to shore up. So libertarians like Nieporent insist that their particular paradoxes and mysteries are magical and absolute. It is the best they can do, so they do it vociferously, and hope that works.

        One way or another, Nieporent dishes it out over and over again. No matter how many distortions of others' advocacy it takes to make his own peculiar notions seem falsely plausible—at least to him. Apparently, that is what Nieporent will continue to do. I have lost patience with it.

        Once again, Nieporent, here are the exact words I said:

        This nation has wisely cast its lot with a notion that freedom of opinion should be absolute, not even subject to libel laws.

        That is a profoundly pro-speech-freedom position. I have never advocated otherwise. It is not forthright to bypass and omit entirely a declaration like that, while rummaging carelessly elsewhere to try to insinuate its opposite. I cannot guess why you do that, but you do it repeatedly.

        You and I have disagreed over particular notions about what will practically support speech freedom best. Your positions have been full of libertarian beans, but I do not think I have ever called you an enemy of free speech because of that. I have called you misguided, and inadvertently mistaken. That is what you are now. Just wrong. Unreflectively, stubbornly, wrong. And intellectually dishonest about my advocacy.

        1. "The people" set up a system of rules. You want to violate it in the name of "the people". That's what we're seeing here.

          You're claiming that the inherent sovereignty of "the people" overrides constitutions, and it does in the sense that the American population could decide to ditch the Constitution in favor of something else, just as they ditched the Articles in favor of the Constitution.

          But that doesn't mean that any person or group who up and claim to be acting on the people's behalf are entitled to toss that constitution aside and violate the rights specified in it against some portion of that very people.

          It's not "the people" acting in your vision. It's just somebody claiming to be acting on their behalf.

          1. Sorry, Brett, but like a large majority of Americans, you misunderstand the theory of American constitutionalism. You are reckoning without two indispensable notions: the notion of continuously active sovereignty, and the notion of the constitutive power. Though little known, those remain indispensable. Consequences of overlooking them are dangerous.

            Without them, government could constrain the sovereign, which if it were possible, would destroy the People's sovereignty, and make the government sovereign in their stead. Without those notions, government would become at once, and paradoxically, the principal threat to individual rights, and the only source of power to protect individual rights.

            You write:

            But that doesn't mean that any person or group who up and claim to be acting on the people's behalf are entitled to toss that constitution aside and violate the rights specified in it against some portion of that very people.

            The issue to which I draw your intention is not what, "any person or group," may do, but instead what all the People exercising their constitutive power actually have done, by the completion of an election. That election result, announced in terms of counted and accepted ballots, is a sovereign decree. Once that has happened, there can be no legitimate power in government to act against it. To pretend otherwise is to pretend a power in government to constrain the sovereign.

            That does not mean ordinary Americans lose their right to speech freedom, to criticize what they take to be election irregularities, or even to assert the election was crooked, and thus stolen. That should all continue to be permitted.

            But members of government, who have sworn an oath to protect the sovereign, cannot be permitted to join in, because to do that would violate their oath. I think more law is needed to clarify that point, and deal with its complications, but even without a new law, the concept is obviously a wise one for the protection of American constitutionalism.

            Look around. Trump, with his fellow election deniers in congress, and in state offices, have ignored that rule (typically followed assiduously by all previous presidential election losers). Look at the trouble the nation is in now because of that. For the first time since the Civil War, the continuation of the American republic has been called into question. It is the gravest political crisis to occur during the lifetime of everyone in the nation.

            1. "but like a large majority of Americans, you misunderstand the theory"

              Bummer, isn't it, when you live in a democracy and everyone else disagrees with you.

              1. Don't like the originalist position, Absaroka? That is okay by me. Join me in a more majoritarian position. I'm not an originalist.

                But I do have to concede that the founders' theory of sovereignty was so comprehensively woven in that the Constitution becomes very hard to understand without it. Most Americans today were never much taught that government is not sovereign, and that there is a continuously active sovereign which wields power superior to government's.

                Among lawyers, even those who were taught seem hell-bent on getting rid of that idea. It seems to make them itch.

        2. Once again you refuse to engage substantively on the question whether an election is a sovereign decree,

          No, that's not the question, even accepting your sovereignty framework. The question is whether the government's claims about election results are a sovereign decree. Saying "you can't challenge this because the People Have Spoken" misses the point that the actual challenge is about what the people have said. Trump, as awful as he was, didn't say "I am president regardless of who won." He said "I actually did win, and they're lying about it."

          which a losing candidate ought not be free to ignore.

          And this half of your question suffers from your usual handwaving and imprecision. Let's assume that there's no question about who won. Should the losing candidate be free to "ignore" that? "Ignore" in what way? Barricading himself in his government office and refusing to leave? Directing law enforcement and other government employees to take action? Of course not. But tweeting that he really won? Sure. That's just speech. It "usurps" nothing.

          because their own decree of speech freedom

          There You Go Again. Freedom of speech is not a gift from the government nor from the "sovereign." To say that freedom of speech only exists because a majority of people have "decreed" it is a profoundly anti-free speech position.

          Once again, Nieporent, here are the exact words I said:

          This nation has wisely cast its lot with a notion that freedom of opinion should be absolute, not even subject to libel laws.

          That is a profoundly pro-speech-freedom position

          No, it's a mediocrely free speech position. It carves out a narrow area of protection ("opinion"), which you then proceed to slice and dice even further, finding all sorts of contexts in which it doesn't apply: there's no such freedom in schools; there's no such freedom in front of vaccination clinics; there's no such freedom if people pool money to exercise it; there's no such freedom if it questions an election result; etc., etc.

          And even where you magnanimously allow that freedom to exist, you think it should be made practically difficult to exercise by the government imposing penalties on those who distribute it in order to empower gatekeepers to control and stifle it.

          1. Thank you for that engagement, Nieporent. It is refreshing to have it. It puts me in a position to point out to bystanders how accurately my comment posted at 7:32 anticipated your remarks.

            Readers can see for themselves. See if you can figure out from what he says above where Nieporent thinks individual rights come from.

            1. David is yet again right on this, you were wrong like normal.

    3. Now do Gore and the Democrats for the past 20 years, Hillary since 2016, and that cow down in Georgia.

  24. "Shouting "burn it down" or "break in and ransack" to a mob standing in front of a building, with the purpose of causing them to commit crimes, is constitutionally unprotected"

    Unless you're in the FBI then you get to do this while your fellow Democrats torture MAGA grannies for months for following your instruction.

  25. Go back on your medication.

  26. The real harm done on 1/6 was the same as was done at Charlottesville -- false flag violence performed by FBI provocateurs in order to smear and persecute the entirely peaceful protesters whom the Right sent to both events, so that we don't dare exercise our right of peaceable assembly any more.

    Where's the law redressing that outrageous crime?

    1. Where is your, uh, evidence of the participation of FBI provocateurs at either the January 6 riot or Charlottesville? Please be specific.

  27. To anyone interested in the history of these issues, including "seditious libel", I recommend Stephen Coss, "The Fever of 1721: The Epidemic That Revolutionized Medicine and American Politics". Although the book focuses on the first experiments in America with innoculation against disease (smallpox), which is VERY interesting in light of today's challenges, it includes discussion of attempts to ban advocacy of that treatment and other unexceptable opinions, and the evolution of the political thinking of Benjamin Franklin.

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