Fact or fiction? Who’s to say?
In the flurry of activity that always ensues when the Washington State Legislature is in session, one bill has flown largely under the radar, yet its implications are enormous.
Backed by Gov. Jay Inslee, Senate Bill 5483 would make it a gross misdemeanor to make false statements about the results of an election.
This bill didn’t originate in a vacuum. The text opens with a statement that states whose electoral processes follow Washington’s model, including mail voting and same-day registration, are secure in their elections and claims to the contrary are false. It goes on to describe (in somewhat subjective terms) the events of Jan. 6, 2021 at the U.S. Capitol, and lays the blame for those squarely on statements by then-President Donald Trump. It adds that a similar, though smaller-scale, event took place in Olympia at the state capitol and the governor’s residence.
And while the bill’s authors admit that there may be some minor hiccups regarding that pesky First Amendment, they seem to believe that it will pass Constitutional muster, because it just has to. After all, as the bill openly states, no less than democracy itself is at stake.
Is it? First of all, our country has functioned more or less continuously since the late 18th century. Surely in all that time, people have spoken negative things, perhaps even untruths, about their electoral opponents at least once or twice. Yet here we are, still democratizing away.
Second, the purpose of the First Amendment is not to preserve democracy anyway. Its purpose is to ensure that people living in that democracy may say, think, print, pray and protest over anything they jolly well please — and the government may not prevent it. Saving democracy is not listed as one of its purposes.
While there have been some restrictions on free speech that have passed the First Amendment hurdle, they are few and very limited, like the famous and often misquoted Brandenburg vs. Ohio case, involving falsely shouting fire in a crowded theater. But deliberately inciting panic in a confined space is a far cry (so to speak) from expressing an opinion in a public forum about an election.
The key word in this bill is “false.” (That’s not a subtle point; the word appears 28 times in a six-page document.) The bill’s authors rely on the idea that there is a fundamental difference between a dissenting opinion and a false statement, one of which is protected and the other not.
But, as a famous judge once asked, what is truth? Is it defined by the official government record? Or by the statements of government officials? Or by popular opinion on social media, or by news reports? If history is written by the winners, then the people in power (or with the largest voice) will always be the ones who decide what’s true and what’s false.
This is where the naked partisanship of this bill really shines forth. All nine of the bill’s original sponsors are Democrats, as is the governor, who initially proposed it. Democrats currently hold sizable majorities in both houses of the Legislature, and that party has held the governorship for 37 years, longer than many voters have been alive.
This party affiliation is by no means irrelevant. Many Washingtonians remember the gubernatorial election of 2004, in which Republican Dino Rossi was certified the winner, until two subsequent Democrat-driven recounts ended with his opponent, Christine Gregoire, winning by a handful of votes with questionable origins. Although no irregularities were ever proven, plenty of people believed – and still believe – that Gregoire’s victory was dishonestly gained. SB 5483 would make it a crime to say so. It would also make it illegal to question any future “victories.” That’s a heck of an advantage for one party.
SB 5483’s sponsors insist that its provisions are crucial to the continuation of our democracy. But if a democracy cannot survive without criminalizing dissent, is it a democracy at all?
— Editorial board