- A jury convicted Douglass Mackey on Friday for conspiring to deprive others of their right to vote by spreading a meme he created, which advertised a way to vote for Hilary Clinton via text during the 2016 election.
- The First Amendment allows for punishing fraud, but “it’s not clear Mackey’s actions qualify as fraud in a legal sense,” Aaron Terr, director of Public Advocacy for the Foundation for Individual Rights and Expression (FIRE), told the Daily Caller News Foundation.
- UCLA Law professor Eugene Volokh told the DCNF that the fraud argument used against Mackey was “broad enough to potentially cover any lies in election campaigns.”
Douglass Mackey’s Friday conviction for an election “meme” he posted on his account with over 58,000 followers has legal experts raising alarm bells about its impact on free speech.
A jury convicted Mackey for conspiring to deprive others of their right to vote through a meme he posted during the 2016 election, which advertised a way to vote for Hilary Clinton via text message. First Amendment experts say Mackey’s conviction is based on an expansive interpretation of a Conspiracy Against Rights law that could impact other forms of speech, from satire to lies in election campaigns.
While the First Amendment allows for punishing fraud, “it’s not clear Mackey’s actions qualify as fraud in a legal sense,” Aaron Terr, director of Public Advocacy for the Foundation for Individual Rights and Expression (FIRE), told the Daily Caller News Foundation.
“Fraud generally requires a speaker to make a false statement to obtain money or something of material value from the injured party, who relies on the false statement to their detriment,” he said. Even if Mackey’s actions did qualify, Terr also noted that the Justice Department indicted him using a statute that goes beyond fraudulent speech.
“It criminalizes conspiring to ‘injure’ or ‘oppress’ someone in the exercise of any constitutional right,” he said. “If that vague language covers speech that deceives people into voting improperly, it raises the troubling possibility of the government also applying it to allegedly false statements about political issues or candidates that discourage people from voting, not just misrepresentations about the logistics of exercising the franchise. Anyone who cares about free speech should be concerned about how the government might abuse this vague and broadly worded law to chill the spirited public discourse on which our democracy depends.”
After being charged with Conspiracy Against Rights, Mackey faces up to ten years in prison. Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law at UCLA, told the DCNF there are two primary routes he could take for an appeal.
First, he could argue that it was all a joke, an argument Volokh doesn’t believe will go far because of the evidence suggesting Mackey was deliberately trying to deceive voters. Second, he could argue that the First Amendment protects the right to deceive.
Volokh believes the best path forward would probably be arguing that the statute he was convicted under was read too broadly. The District Court’s fraud argument, he noted, was “broad enough to potentially cover any lies in election campaigns,” which could be viewed as defrauding voters into “voting contrary to how they would have preferred.”
Further statement from Andrew J. Frisch: “The appellate court will have its choice of which issue on which to vacate the conviction.” 1/2 https://t.co/zMoZ0phgHx
— Douglass Mackey (@DougMackeyCase) March 31, 2023
It could also be read to include activities like trying to get a speech canceled, he said.
“[One] could argue that all deliberate lies in election campaigns should indeed be legally punishable,” he said. “But most recent court decisions have held otherwise.”
Terr noted that Mackey’s conviction could also “deter others from engaging in satire.”
“The First Amendment generally protects false speech because we don’t want the government prosecuting people for satire and hyperbole, or targeting dissenters under the guise of combating “misinformation,” he said. “Even if Mackey wasn’t being satirical, it’s easy to imagine a prosecution like this deterring others from engaging in satire for fear the government won’t get the joke.”
Mackey’s attorney, Andrew Frisch, is “optimistic” about prevailing on an appeal, according to the @DougMackeyCase Twitter account.
“The appellate court will have its choice of which issue on which to vacate the conviction,” Frisch said. “It may choose to do so on first amendment grounds, or on the government’s suppression of exculpatory information, or on the insufficiency of evidence of venue among other issues. We are optimistic about our chances on appeal.”
Mackey was initially arrested in January 2021. At least 4,900 individuals texted the number Mackey advertised in the lead up to the 2016 election, according to the DOJ.
