In February, California Assemblyman Ed Chau introduced a bill (AB 1104) that according to its author “attacks the problem of ‘fake news’ by creating a new state law designed to make it illegal for someone to make false or deceptive statements about a candidate or measure on the ballot”. Specifically, the bill would amend the Elections Code to provide:
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.
Fake news may seem to be a creature of the internet, but legislatures have been attempting to criminalize speech since the colonial times. The New Hampshire General Assembly adopted the following prohibition on false news in 1680 (original spelling):
It is inacted by this Assembly, c., That wt pson soever, being 16 yeares of age, or upward, shall wittingly or willingly make or publish any lie wch may be tending to ye damage or hurt of any pticular pson, or wth intent to deceive and abuse the people with false news or reports, shall be fined for every such defalt 10s., and if ye ptie cannot or will not pay ye fine, then he shall sit in ye stocks as long as the court shall think meete; and if the offenders shall come to any one of councill aforesd to execute ye law upon him where he liveth, and spare his appearance at ye Court, but in case when ye lie is greatly prnitious to ye comon weale, it shall be more sevearly punished according to the nature of it.
General Laws & Liberties of New Hampshire (March 16, 1680). New Hampshire wasn’t the first to enact such legislation, Massachusetts had imposed a similar ban on false news in 1641:
That everie person of the age of discretion [which is accounted fourteen years] who shall wittingly and willingly make, or publish any Lye which may be pernicious to the publick weal, or tending to the damage or injurie of any particular person, or with intent to deceive and abouse the people with false news or reports: and the same duly proved in any Court or before any one Magistrate (who hath heerby power graunted to hear, and determin all offences against this Law) such person shall be fined for the first offence ten shillings, or if the partie be unable to pay the same then to be set in the stocks so long as the said Court of Magistrate shall appoint, in some open place, not exceeding two hours. For the second offence in that kinde wherof any shall be legally convicted the sum of twenty shillings, or be whipped upon the naked body not exceeding ten stripes. And for the third offence that way fourty shillings, or if the partie be unable to pay, then to be whipped with more stripes, not exceeding fifteen. And if yet any shall offend in the like kinde, and be legally convicted therof, such person, male or female, shall be fined ten shillings a time more then formerly: or if the partie so offending be unable to pay, then to be whipped with five, or six more stripes then formerly not exceeding fourty at any time.
The Book of the General Lawes and Libertyes Concerning the Inhabitants of the Massachusets Collected Out of the Records of the General Court for the Several Years Wherein They Were Made and Established (1645).
If one eliminates the archaic spelling and punishments, these laws are remarkably similar to the bill presently before the California legislature. For example, they each require a knowing an intentional violation. However, the colonial legislators obviously didn’t have to concern themselves with constitutional guarantees of freedom of expression. In Susan B. Anthony List v. Driehaus, 814 F.3d 466 (6th Cir. Ohio 2016), the Court of Appeals considered an Ohio statute that made it a crime punishable by up to six months in prison and a $5,000 fine for anyone to knowingly or with reckless disregard disseminate false information about a political candidate. The Court of Appeals struck down Ohio’s laws as “content-based restrictions targeting core political speech that are not narrowly tailored to serve the state’s admittedly compelling interest in conducting fair elections”. In an earlier case considering a Minnesota law proscribing false political speech, the Judge C. Arlen Beam wisely observed:
The citizenry, not the government, should be the monitor of falseness in the political arena. Citizens can digest and question writings or broadcasts in favor or against ballot initiatives just as they are equally poised to weigh counterpoints.
281 Care Comm. v. Arneson, 766 F.3d 774, 796 (8th Cir. Minn. 2014).