“Democrats Propose Making It Illegal To Spread False Election Information”; Some Thoughts on Constitutionality

HuffPost:

Several congressional Democrats plan to introduce legislation Thursday that would make it a federal crime to knowingly and intentionally publish false information about elections.

The legislation would criminalize knowingly spreading wrong information related to the time and place of elections as well as voter qualifications and registration status. The bill would also make it illegal to knowingly claim an endorsement from someone within 60 days of a federal election. Anyone who spread such misinformation would be subject to up to five years in prison and a $100,000 fine.

In my law review article, A Constitutional Right to Lie in Campaigns and Elections?, I draw a distinction between laws barring false speech in campaigns (which is likely a First Amendment violation) and those that bar false speech about there where/when/how of voting (which is likely constitutional).

Since I wrote that Article, the Supreme Court appeared to agree on the constitutionality of such laws. As I explained at Slate, in Minnesota Voters Alliance v. Mansky, “the court made it clear that a state ‘may prohibit messages intended to mislead voters about voting requirements and procedures.’ So Minnesota likely had the power to ban the ‘Please I.D. Me’ buttons, not because they are political, but because they are misleading. In an era of campaign dirty tricks, “fake news,” and misinformation, this is a welcome recognition that states have broad powers to stop false and misleading speech about when and how to vote.”

This suggests that the part of the proposed law that would bar spreading wrong information about the time and place of elections as well as voter qualification and registration status would be constitutional, but the law barring false statements about campaign endorsements may well not be.

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