Legal experts are voicing concerns about the ongoing court case of Douglass Mackey, an internet troll charged in 2021 for posting a meme on Twitter that spread “disinformation,” which the government deemed “conspiring” to deprive others of their right to vote.
Mackey, who had over 58,000 followers on his account using the name “Ricky Vaughn” prior to the 2016 election, posted an image on Twitter advertising the ability to vote for Hillary Clinton by text, prompting at least 4,900 individuals to do so, according to the Department of Justice (DOJ) news release. He was charged in January 2021 under a “conspiracy against rights” law that makes it an offense “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.”
Aaron Terr, director of Public Advocacy for the Foundation for Individual Rights and Expression (FIRE), a legal organization that defends free speech, told the Daily Caller News Foundation that it is “difficult to see how any of those terms apply to merely saying something false about the election.”
“The government’s broad interpretation of the statute raises the troubling possibility that it might also try to punish other election-related speech it thinks is false,” he said.
University of California, Los Angeles Law Professor Eugene Volokh raised a similar concern in Tablet Magazine, writing that the breadth of prosecuting Mackey under this law is a “disquieting” precedent.
Using the court’s reasoning, Volokh said activities like “picketing outside a party’s headquarters” or “urging the Manchester Professional Firefighters Association to shut down its get-out-the-vote effort” could also be crimes, since they have the intent to “impede or prevent qualified persons from exercising the right to vote.”
Yet, according to District Court Judge Nicholas G. Garaufis’ Jan. 23 denial of Mackey’s motion to dismiss, the case is not about speech, but “conspiracy and injury.”
“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,” Garaufis wrote. “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.”
Whether Mackey’s speech is protected as satire “is a question of fact reserved for the jury,” he said.
In the original DOJ release, Assistant Director in Charge of the FBI’s New York Field Office William F. Sweeney Jr. said Mackey’s actions “amounted to nothing short of vote theft.”
“It is illegal behavior and contributes to the erosion of the public’s trust in our electoral processes,” he said.
While the government can punish speech like defamation, fraud, and perjury under the First Amendment, Terr notes there is no “‘disinformation’ exception.”
“The truth isn’t always clear, and the line between fact and opinion is often blurry,” he said. “Giving the government a general power to police false election-related speech would have a disastrous chilling effect on political expression. The government would almost certainly abuse this power to selectively target its political adversaries’ speech.”