It has been a hell of a week for free speech in the state of California.
First, the state's Attorney General leveled 15 felony charges against the pro-life activists behind the hidden camera investigation of Planned Parenthood's fetal tissue scandal.
Now California is set to pass an amendment that would make it illegal to knowingly engage in the distribution of so-called fake news if, "those news stories later have an impact on an election," conservative columnist Emily Zanotti writes.
In other words, the California Assembly would like to have the power to punish hoax reporting if said "fake news" is determined to have had an affect on an election. The bill provides no details about who gets to determine what is and isn't "fake news." There are also no details regarding how a story would even qualify for that title.
Basically, it's a mess.
The bill is very real. Here is the relevant portion dealing with "fake news":
Section 18320.5 is added to the Elections Code, to read:
It is unlawful for a person to knowingly and willingly make, publish or circulate on an Internet Web site, or cause to be made, published, or circulated in any writing posted on an Internet Web site, a false or deceptive statement designed to influence the vote on either of the following:
(a) Any issue submitted to voters at an election.
(b) Any candidate for election to public office.
There are so many problems with the proposal, including that it raises several obvious questions about the First Amendment and free speech.
"Political advocacy is a form of protected speech under the First Amendment, and the Supreme Court has been adamant that political advertising—even when it involves smears, exaggerations and "poetic license"—is included under the umbrella of 'political advocacy,'" Zanotti noted.
Then there's the separate issue that "fake news" doesn't even seem to affect elections, at least not on the presidential scale, according to a study by researchers at Stanford and New York University.
Anyway, good luck making it illegal to tell a lie during an election, California.