I’m old enough to remember when speaking out about political issues was actually considered “a good thing.” You know… raising your voice, participating in the debate and voting. Those were all admirable activities in a participatory democracy. Not so in California these days, particularly after the passage of a new law that will leave you subject to a penalty in court if you talk about mail-in voting in a way not approved of by the Democratic majority. That’s right. Gavin Newsom just signed a new bill into law that makes it a misdemeanor to “spread disinformation” about voting by mail, either in person or on social media. And the bill’s sponsor wants law enforcement to start prosecuting people immediately. (CBS Los Angeles)
A newly signed state law makes spreading misinformation about voting by mail a misdemeanor criminal offense.
Authored by Sen. Henry Stern, D-Los Angeles, SB 739 took effect immediately after being signed by Gov. Gavin Newsom on Friday.
“If you’re putting out tweets, Facebook posts or using social and other types of media to intentionally mislead voters about their right and ability to vote by mail, that’s now a crime, and it’s my hope local D.A.s and the state attorney general will go after violators the moment they see them,” Stern said.
This law is problematic on so many levels that it’s difficult to imagine it surviving a challenge in the courts. (Read the full text here.) What California is essentially doing here is criminalizing political speech, so there are huge First Amendment implications. The law also relies heavily on some very dubious verbiage when defining who may or may not be guilty. The accused must be shown to have “actual knowledge and intent to deceive.” Really? Well, what if the person is talking about something they believe to be true but they’re just wrong because they read something incorrectly? How do you propose to prove that?
Also, the guilty party must be spreading “voting information that is incorrect, false, or misleading.” The prosecutor then has to rely on someone to draw a line in the sand as to what is “misleading.” Good luck with that.
I wonder what sort of information would fall into this category? For example, let’s say you pointed out to your followers on Twitter that people have been sent to jail after being convicted of stealing and/or altering thousands of mail-in ballots and they found such fraud incredibly easy to pull off. Would you be getting a ticket? Or perhaps you could point to instances where unscrupulous postal carriers were recruited to misdeliver ballots or simply throw completed ones in the trash. Would that qualify as “misinformation” even though it’s true?
We also don’t know where the line between opinions, criticism and facts will be drawn. How about that guy in Michigan who put a display in his yard including a sign about mail-in voting and a toilet? If he moved that display to California, could he be arrested?
At the moment, I’m hard-pressed to think of an example of actual misinformation about voting by mail that could legitimately be considered patent falsehoods under this statute. I suppose if you were telling people an incorrect date that the ballots must be received by or claiming that they needed to be sent to a false address that might fall under this category. But the person doing it would either need to do a lot of research in advance or be an election law lawyer. Otherwise, as noted above, how will the courts handle it if the person simply claims they didn’t know the information was incorrect?
I’m going to pin a news update bookmark to this one so we can all keep track of it. I’ll be fascinated to see if a single person is actually prosecuted under this new law and how it shakes out in the courts.