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Gov. Inslee says lying about elections should be a crime

caption: Police guard the Washington State Capitol building on Monday, January 11, 2021, in Olympia. Armed protesters gathered on the opposite side of the fence on the first day of the legislative session in Olympia.
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Police guard the Washington State Capitol building on Monday, January 11, 2021, in Olympia. Armed protesters gathered on the opposite side of the fence on the first day of the legislative session in Olympia.
KUOW Photo/Megan Farmer

In a surprise announcement Thursday, the anniversary of the January 6, 2021 attack on the U.S. Capitol, Washington Gov. Jay Inslee announced that he's drafting legislation to make it a crime for elected officials and candidates for public office to make false statements about election outcomes with the goal of inciting lawlessness.

Inslee said such a law could withstand free speech challenges and is necessary to guard against ongoing attacks on democracy.

Warning of ongoing “threats to democracy,” Washington Gov. Jay Inslee said Thursday he will support legislation this year to make it a gross misdemeanor for elected officials and candidates for public office to issue false statements about election outcomes.

“It should not be legal in the state of Washington for elected officials or candidates for office to willfully lie about these election results, and unfortunately they are doing that,” Inslee said. “This needs to be made illegal.”

It was not immediately clear if similar legislation is under consideration in any other state.

Inslee announced his support for the legislation during a legislative preview event hosted by the Associated Press which coincided with the anniversary of the January 6, 2021 attack on the U.S. Capitol by supporters of former President Donald Trump.

On that same day a year ago, Inslee was rushed to a safe room after pro-Trump supporters, including some who were armed, breached the security gate at the governor’s residence in Olympia and made their way to the front portico.

The three-term Democratic governor, in his most extensive comments on the subject to date, spoke passionately about his concern for the state of democracy in the United States and his belief that Trump is engaged in an ongoing coup attempt. He called for politicians on both sides of the aisle to speak out more forcefully against the former president and his allies.

“The violence of January 6 of last year is just a warning of what is coming and the basis of it is the ‘Big Lie,’” he said. “That’s [why] I’m calling on all elected officials of both parties to join together arm-in-arm and call that out,” Inslee said.

The “Big Lie” is a reference to the false assertion by Trump and his supporters that the 2020 election was stolen.

The governor also assailed three Republican state lawmakers – Brad Klippert, Vicki Kraft and Robert Sutherland -- who attended at taxpayer expense an election conspiracy theory conference in South Dakota last summer. The Seattle Times first reported the details of that trip earlier this week.

“The defeated president and his allies, including some legislators in Washington state, are perpetuating the belief that this election was stolen from them,” Inslee said. “What do you think is going to happen if you perpetuate that belief? Of course violence can be happening as a result of that.”

Reached by The Seattle Times, two of the legislators, Kraft and Sutherland, defended their attendance at the "Cyber Symposium" sponsored by MyPillow CEO Mike Lindell, as informative to their work on election-related legislation.

Regarding his proposal to criminalize false statements about elections, Inslee said the “finishing touches” were being put on a draft of the bill and that his office was talking to lawmakers about sponsoring it.

Later in the day, the governor's office clarified that the proposal would be narrowly tailored to target "lies about free and fair elections when it has the likelihood to stoke violence."

Inslee defended the idea of criminalizing unsupported claims of election fraud and stolen elections — if they're likely to result in violence — as not a violation of freedom of speech.

“I believe it will be constitutional because we understand this is the type of speech that can promote violence and the courts have held that speech that promotes violence is something that can be regulated to protect a civil society,” Inslee said.

The governor likened the rhetoric about elections being stolen to “yelling fire in a crowded theater.”

“The defeated president as recently as an hour ago is yelling fire in the crowded theater of democracy,” Inslee said, referring to statements Trump issued Thursday. Those statements included: “Never forget the crime of the 2020 Presidential Election. Never give up!”

Hugh Spitzer, a University of Washington law professor and expert on the state Constitution, said it would be difficult to make criminal charges stick in a case against a state official or candidate for making false statements about an election.

“It’s not easy to criminally convict people based on their speech, it’s always pretty hard,” Spitzer said.

Spitzer noted that in 2012 the U.S. Supreme Court ruled unconstitutional the federal 2005 Stolen Valor Act, which made it a crime to falsely claim to have been awarded military honors.

In 2007, the Washington Supreme Court found that a noncriminal statute that prohibited candidates from making false statements about their opponents in election advertisements also violated free speech.

"The notion that the government, rather than the people, may be the final arbiter of truth in political debate is fundamentally at odds with the First Amendment," then-Justice Jim Johnson wrote in the majority opinion.

Still, Spitzer did not rule out the idea that a law could be crafted that could withstand a constitutional challenge.

“It would be uphill based on these cases, but it doesn’t mean it couldn’t work,” Spitzer said.

On Twitter, Republican state Rep. Drew Stokesbary of King County swiftly rebuked Inslee’s proposal.

“You combat bad speech with better speech, not criminal sanctions,” Stokesbary wrote. “Threatening to jail people for political speech is as dangerous to our democracy as questioning election results.”

House Republican Leader J.T. Wilcox declined to comment until he could see the language of the proposed bill.

“The governor is trying to make news, I’m not going to help him,” Wilcox said.

During his appearance at the AP event, Inslee also offered — after being prompted by a reporter — his most detailed description to date of what happened to him on January 6, 2021 after some participants in a "stop the steal" rally on the Capitol steps made their way to the governor’s residence and breached a security gate. Inslee said he was on a conference call and could hear the commotion outside when a state trooper on his executive protection detail came and said they needed to go to a nearby safe room.

“I don’t argue with them in those circumstances, and so I followed them to the safe room, put on a flak jacket at their request and things transpired,” Inslee recalled.

Inslee praised a state patrol cadet who tried to hold back the crowd that swept across the residence lawn after breaching the gate. He also acknowledged a state trooper who confronted the crowd at the front door to the residence.

According to the Washington State Patrol, four people were arrested in the wake of the security breach and investigations are still ongoing into the events of that day.

“They brought AR-15s to my front door and tried to get in, but they didn’t get me. So I’m OK,” Inslee said Thursday.

But Inslee said as a former longtime member of Congress, watching the attack on the U.S. Capitol — which he called “the temple of democracy” — was profound and personal.

“The world looks to that building for leadership to maintain democracy, and to see it besmirched by this attack hits me right here,” Inslee said pointing to his chest.

On Thursday, Inslee ordered flags in Washington lowered in honor of the police officers killed and injured in the January 6 attack.

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