This month, a federal district court heard arguments over Hawaiʻi’s new law criminalizing the distribution of “materially deceptive media” that may risk harming “the reputation or electoral prospects” of politicians. Translation: The law outlaws satirical content poking fun at political candidates — and, it almost goes without saying, that sort of ban on speech directly contradicts the First Amendment, as a district court in California concluded this summer about a similar law there.
Under the Hawaiʻi law, anyone who posts — or even re-posts — a political meme, for example, during election season could face serious consequences like jail time, fines, lawsuits, damages, attorneys’ fees, and injunctions.
The law targets anyone posting this type of content, including satire site The Babylon Bee. The Bee — which carries the masthead “Fake news you can trust” — posts memes, videos, and other satirical content on various online platforms, with some of it focused on political figures. Under Hawaiʻi’s law, The Bee faces penalties if its posts “would cause a reasonable viewer or listener to believe that the depicted individual engaged in the speech or conduct depicted.”
The law offers a “solution” to avoid penalty that only doubles down on the constitutional violation. Content creators like The Bee must post a large disclaimer on its content to ensure viewers know it is a joke. The Babylon Bee CEO Seth Dillon put it well: “We’re used to getting pulled over by the joke police, but comedy isn’t a crime. The First Amendment protects our right to tell jokes, whether it’s election season or not.”
Political satire is about as old as Western Civilization itself. And it has served as a form of political discourse since before the original colonies became the United States of America. Satirical speech can be a very effective tool in political discourse, but, as E.B. White said, explaining a joke is like dissecting a frog: You understand it, but the frog dies in the process.
The good news is that the First Amendment doesn’t allow Hawaiʻi to set up a “ministry of truth” to decide what political speech is acceptable. The Babylon Bee, along with Hawaiʻi resident Dawn O’Brien, sued the state over the law with the help of Alliance Defending Freedom, where I serve. ADF also represents The Bee in its lawsuit against California’s law.
Hawaiʻi’s law, if permitted to stand, will set a dangerous precedent that the government has the right to control speech with which it disagrees. That is no laughing matter.
The state claims its purpose is to ensure that people won’t be confused by political speech that isn’t literally true. But this paternalistic posture assumes that Hawaiʻi residents are too obtuse to separate fact from fiction and come to their own opinions about politicians. The reality is darker: The Hawaiʻi government feels the need to censor speech that could potentially sway people to a certain side.
Free speech is essential to an open, self-governing society. That includes satirical speech and speech that may not paint politicians in the best light. States like Hawaiʻi and California don’t get to ban speech just because they don’t get the joke.
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