Can the feds prosecute Douglass Mackey for trolling on Twitter?

In the first case of its kind, the Justice Department is prosecuting an internet troll, using a Reconstruction-era law to claim that a series of misleading memes on social media was an attempt to “deny individuals of their constitutional right to vote.”

During the 2016 election season, Douglass Mackey was a prolific far-right Twitter user under the name “Ricky Vaughn.” Mackey frequently posted pro-Trump memes and comments to his 58,000 followers. One MIT Media Lab analysis argues that it may have had a greater effect on the 2016 election than NBC News.

At one point, he posted a series of images that appeared to be aimed at tricking Hillary Clinton supporters into thinking they could vote by text. “Skip the line. Vote from home,” reads one of these images against a backdrop of a Clinton sign. “Text ‘Hillary’ to 59925.” According to a statement from the Ministry of Justice, at least 4,900 people sent text messages to that number before election day.

Federal officials say this was a deliberate attempt to violate voters’ constitutional rights. On January 27, 2021, they charged Mackey with conspiracy “to injure, oppress, threaten, and intimidate one or more persons in the free exercise and enjoyment of the rights and privileges secured to them by the Constitution and laws of the United States, viz: the right to vote.” Their case is based on an 1870 law designed to prevent violent white racist groups from preventing black citizens from voting. The Justice Department believes this is the first time an American has faced criminal charges for misinformation on Twitter.

Mackey tried to have the case dismissed in district court last month, arguing that his tweets were satirical and protected by the First Amendment. His request for dismissal was rejected. Judge Nicholas G. Garaufis wrote, “This case is about conspiracy and injury, not speech. . . . As applied in the Indictment, this statute is used to prosecute a conspiracy to deceive people into staying home to vote— conduct accomplished by speech—not a crime specific to statements made to that end.”

Aaron Terr, an attorney at the Foundation for Personal Rights and Expression, disagrees. “The First Amendment presumes to protect all speech unless it falls within a specific, narrowly defined category established by the Supreme Court. And the First Amendment does not create a blanket exemption for false speech,” he says. “There are certain types of false speech that are established exceptions to the First Amendment, such as libel or fraud,” but Mackey’s speech clearly does not fall into either category.

Eugene Volokh, a professor at the UCLA School of Law, recently proposed Tablet article that “narrow and clearly defined statutes prohibiting lying about the mechanics of voting are likely constitutional,” but also noted that “there is no such clear and narrow federal statute” in Mackey’s case. He added that when similar issues came up in court, judges were generally “quite skeptical of general prohibitions on lying in elections.”

If Mackey is convicted, it would pave the way for direct government regulation of a broad category of speech labeled election “disinformation.” The consequences could be far-reaching – it is possible that a number of anti-vote speeches will be subject to prosecution.

“I think you can reasonably ask yourself what would [the Justice Department’s interpretation of the law] apply to something like someone who simply discourages people from voting?” added Terr. “I mean, there are serious scholars and commentators who have argued that your vote doesn’t matter. What if, because of this, a large number of citizens sat down on election day? Does it harm the electoral process? Does it harm democracy?… It’s just dangerous to give the government that kind of power.”

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