California (EFF) – Update (12:00 p.m., March 28, 2017): A.B. 1104 has been pulled and will not be heard in committee today.
Memo to California Assemblymember Ed Chau: you can’t fight fake news with a bad law.
On Tuesday, the California Assembly’s Committee on Privacy and Consumer Affairs, which Chau chairs, will consider A.B. 1104—a censorship bill so obviously unconstitutional, we had to double check that it was real.
18320.5. 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.
In other words, it would be illegal to be wrong on the internet if it could impact an election. The bill is unconstitutional under U.S. Supreme Court case law (see our opposition letter for more information on that), and likely to draw immediate and costly lawsuits if it is signed into law.
For Chau, A.B. 1104 is an attempt to address the issue of “fake news” that many believe plagued the 2016 election: websites publishing false stories and promoting them over social media.
No law, and certainly not A.B. 1104, will remedy this problem.
American political speech dating back as far as the John Adams-Thomas Jefferson rivalry has involved unfair smears, half and stretched truths, and even outright lies. During the 2016 campaign alone, PolitiFact ranked 202 statements made by President Donald Trump as mostly false or false statements and 63 “Pants on Fire” statements. Hillary Cllinton made 69 statements ranked mostly false or false and seven as “Pants on Fire.”
This bill will fuel a chaotic free-for-all of mudslinging with candidates and others being accused of crimes at the slightest hint of hyberbole, exaggeration, poetic license, or common error. While those accusations may not ultimately hold up, politically motivated prosecutions—or the threat of such—may harm democracy more than if the issue had just been left alone. Furthermore, A.B. 1104 makes no exception for satire and parody, leaving The Onion and Saturday Night Live open to accusations of illegal content. Nor does it exempt news organizations who quote deceptive statements made by politicians in their online reporting—even if their reporting is meant to debunk those claims. And what of everyday citizens who are duped by misleading materials: if 1,000 Californians retweet an incorrect statement by a presidential candidate, have they all broken the law?
At a time when political leaders are promoting “alternative facts” and branding unflattering reporting as “fake news,” we don’t think it’s a good idea to give the government more power to punish speech.