It seems that President Trump regularly makes the news for his rhetorical attacks on the freedom of press and journalists. Now some Democrats, apparently eager to prove that they are ambivalent about the First Amendment as well, want to criminalize certain types of speech about elections.
The Huffington Post reports that Democrat Sens. Claire McCaskill (Mo.), Ben Cardin (Md.), Doug Jones (Ala.) and Patrick Leahy (Vt.). plan to introduce legislation that would make it a federal crime to knowingly spread false information about voter registration and qualifications or the time and place of elections. Democratic Reps. A. Donald McEachin (Va.) and Jerry Nadler (N.Y.) will introduce companion legislation in the House.
“Misinformation campaigns intended only to suppress the vote and disenfranchise Missourians are crimes that run counter to our democratic values, and the punishment for those actions should fit the crime,” Sen. McCaskill said in a statement.
The Post cites several examples of election hoaxes from recent elections. Flyers in Maine in 2016 falsely told college students that they had to “pay to change your driver’s license to Lewiston” and “pay to re-register” their vehicles if they wanted to vote locally. The Republican mayor of Mansfield, Ga. posted a message to his Facebook page that read, “Remember the voting days: Republicans vote on Tuesday, 11/8 and Democrats vote on Wednesday, 11/9.”
Of the two examples, the first seems to be a serious attempt at voter suppression while the second is an obvious joke. I’ve heard the same joke in more elections than I can remember and no one ever seemed to take it seriously. It seemed funny when I first heard it about 20 years ago, but now seems as tired as, “That was no lady, that was my wife.”
In either case, the First Amendment defender in me argues that the best reaction to false speech and fake news is not criminalizing speech that we don’t like it, but in countering it with more speech that is good and true. There are ample opportunities for political groups to educate voters on the real election and voter registration rules in their state.
There is also the question of how effective such a “fake speech” law would be. The speech police might snare jokesters like the mayor of Mansfield, but it is less likely that they would catch the anonymous culprits who printed the flyers in Maine. Flyers printed cheaply on a home copier or printer would be hard to trace unless police nabbed someone in the act of handing them out.
When it comes to fake news, the Democrats need to remember that the First Amendment prohibits the government from making any law “abridging the freedom of speech.” It does not include exceptions for fake speech, hate speech or things that people find offensive.
Republicans should remember that the same guarantees apply to the freedom of the press as well. The last thing that proponents of small government should want is for government bureaucrats to determine what is true and what is fake or unfair.
In the end, it is a voter’s responsibility to register and educate themselves on candidates and elections. When there are real and serious attempts to mislead potential voters, these reprehensible acts make it more difficult to exercise the right to vote, but no one ever said that democracy was easy. One of the most difficult aspects of maintaining democracy may be guarding against well-intentioned but poorly thought out laws that erode our basic constitutional rights.
Originally published on The Resurgent