Chief election officials in several states want to make it illegal for someone to knowingly spread false information about an election. The move raises questions about first amendment protected speech.
The Democratic secretaries of state for Michigan and Minnesota said they are supporting legislation that would criminalize people who spread misinformation about an election.
Michigan’s secretary of state, Jocelyn Benson, said the law would prevent people from tweeting that Election Day is on a Wednesday or saying that voting machines are insecure when they know that information to be false.
Most states already prohibit interference with the election process in some manner, but the specificity of the laws when it comes to the spread of misinformation or the use of deceptive practices before an election varies from state to state.
Minnesota secretary of state Steve Simon is supporting a bill proposed in his state that would prohibit anyone within 60 days of an election from causing “information to be transmitted by any means that the person intends to impede or prevent another person from exercising the right to vote; and knows to be materially false”.
The proposed laws come in the absence of federal protection against election misinformation.
Under U.S. law, spreading disinformation in a political campaign is completely legal. That is, as long as no foreign individual, entity, or government is involved.
Federal election laws prohibit engaging or using a foreign individual, government, or political party in any election activities. Thus, a politician can lie to or mislead voters or intentionally misrepresent the facts in their campaign and that is a lawful activity as long as it is all domestic.
The U.S. has numerous legal authorities to impose sanctions and penalties for foreign interference in elections, but no restrictions on domestic disinformation.
About the proposed Minnesota law, Simon said that it is not criminalizing speech, but rather is aimed at interference with the election process.
Colorado secretary of state Jena Griswold, who leads the Democratic Association of Secretaries of State, said the focus must be on protecting people’s first amendment rights.
Democrats in Congress have proposed the Deceptive Practices and Voter Intimidation Prevention Act, most recently in 2021, which would prohibit deceptive practices, false statements, and voter interference regarding federal elections.
But the legislation, which was first proposed by then-Senator Barack Obama in 2007, has stalled. The type of misinformation being criminalized is critical to whether or not the laws would violate the first amendment, experts say.
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