An internet provocateur named Douglass Mackey sent out memes prior to the 2016 election that urged people to vote for Hillary Clinton, not in early balloting or at the polling place, but online.
One meme, sent to Mackey’s 58,000 followers, featured a photo of a smiling Hillary Clinton with the words: “vote for her. vote from home.” It continued: “On November 8th, type the word ‘Hillary’ and post it to Twitter or Facebook, using the hashtag #PresidentialElection between 7 am and 9 pm EST to cast your vote for Hillary, from home!”
Another image featured a photo of a black woman in front of a sign that proclaimed, “African Americans for President … Hillary.” The accompanying text read: “Avoid the line. Vote from home. Text ‘Hillary’ to 59925. Vote for Hillary and be part of history.”
Mackey is being sued by the Department of Justice for disseminating “misinformation,” although he says he was engaging in satire. If convicted, he could face up to 10 years in prison.
Mackey, tweeting under the pseudonym Ricky Vaughn (named after the Charlie Sheen character in the movie Major League), obviously did not get the memo that satire is obsolete.
This fine and delicious art has been outpaced by history, and overtaken by current events. The absurdum has been stripped from the reduction. After all, men can have babies. Supreme Court justices and other smart people can’t tell you what a woman is. If you feel like you’re a woman, you’re a woman, even if you’re really a man. And vice versa. Biological males can defeat women in women’s sports events, and feminists stand silently by. Fetuses are babies if you want them to be babies and mere clumps of cells if you don’t. In the world of theology, the head chaplain at Harvard is an atheist, and Christian campus groups cannot require their leaders to be Christians.
Yes, Walter Sobchak, the whole world has gone crazy — crazy enough that an internet meme telling people they can vote for president by tapping around on their cell phones is believed by thousands, and crazy enough that the creator of those memes can be hauled into court.
Mackey is being charged with conspiring with others “to disseminate misinformation designed to deprive individuals of their constitutional right to vote.” He has allegedly violated 18 U.S.C. § 241, a federal law that punishes conspiracies “to injure, oppress, threaten, or intimidate any person … in the free exercise or enjoyment of any right or privilege secured to him by the Constitution.” The law was written in 1870 and was designed to stop white supremacists from preventing blacks from voting.
But did Mackey “deprive” anyone of the right to vote, not to mention “injure, oppress, threaten, or intimidate” anyone? The Daily Caller cites Aaron Terr, director of public advocacy for the Foundation for Individual Rights and Expression (FIRE), a legal organization that defends free speech. Terr said that it is “difficult to see how any of those terms apply to merely saying something false about the election.”
Mackey did tell a lie, and it was a lie told within the context of a political campaign. As we know, hardly anybody lies during political campaigns. And it was an effective prevarication, inveigling 4,900 “unique telephone numbers,” according to the complaint, to text their votes to the 59925 number.
Contributing editor Andrew McCarthy opines in National Review:
Not that it matters, but the government’s complaint makes no effort to sort out how many of those 4,900 people texted as a lark, how many were eligible to vote, or how many did not vote — much less did not vote because of Mackey’s tweets. Also unmentioned is the common knowledge that there is no legal process to vote by text message (at least for now … but give the Democrats time).
Mackey tried last month to get the charges, levied originally in January 2021, thrown out, claiming he was being satiric and his speech was protected by the First Amendment, but he was denied.
In dismissing Mackey’s plea, District Court Judge Nicholas G. Garaufis said the case was not about free speech but about conspiracy and injury. Mackey allegedly conspired with unspecified “others” in Twitter direct message groups called “War Room” and “Infowars Madman” to come up with the texting scheme.
Garaufis wrote:
As applied within the Indictment, this law is used to prosecute a conspiracy to trick people into staying home from the polls — conduct effectuated through speech — not a crime particular to the utterances made to effect that aim…. False speech raises unique First Amendment concerns, and depending on the context of the false speech, may fall into categories historically exempted from First Amendment protection or warrant intermediate, not strict, scrutiny.
McCarthy calls it a “ridiculous prosecution” and accuses officials of overplaying their hand in the Justice Department press release. One U.S. attorney said Mackey was attempting “to defraud citizens of their right to vote,” although Mackey was not charged with fraud. Nor is he charged with “vote theft,” although an FBI spokesman said his actions amounted to “nothing short of vote theft.”
McCarthy adds:
In a sane world, Mackey’s sleazy conduct would be shrugged off as a political dirty trick — unethical and dishonest, but not a federal crime. Leave it to DOJ’s would-be legislator-lawyers, though, to try to turn it into one. To make this frivolous case, they distort a civil-rights law that was enacted to address a severe societal problem: Americans — usually black Americans — being impeded by violence and threats of force from exercising their right to vote.
Frivolity aside, many are troubled by the implications of the Mackey indictment. If he is convicted, all manner of “anti-voting speech” could be prosecuted, like simply telling people not to vote. First Amendment scholar Eugene Volokh, writing in Tablet magazine, broaches a number of plausible — heretofore legal — activities possibly endangered by a Mackey conviction: from a union wishing to shut down its get-out-the-vote effort to picketing outside a party’s headquarters to convince party workers to abandon their get-out-the-vote effort because the party’s candidate was known as a crook or a racist.
Volokh expands the danger beyond the realm of speech:
It’s not obvious that deceiving someone into voting in an invalid way qualifies as “injur[ing]” or “oppress[ing].” But if the statute does cover deception, nothing in the text limits such deception to speak about the mechanics of voting. Alleged lies about the government or national security or the economy could also be prosecuted if the government thought they were intended to discourage people from voting.
McCarthy calls the Mackey case dangerous:
It’s the government’s toe in the water. The distance is very short from claiming the power to police misinformation about how to vote, to policing information about whom to vote for, to assuming the role of campaign-messaging monitor. Once the government starts using criminal law enforcement — 10-year felony charges — to regulate political speech, there will be far less political speech, which will be a boon for the incumbent.
The case is set to be tried in the Eastern District Court of New York.
via spectator