Federal prosecutors accused Douglass Mackey, 31, described in news reports as a “Twitter Troll,”of coordinating with co-conspirators to spread misinformation on Twitter in 2016 that Hillary Clinton’s supporters could vote by sending a text message to a specific phone number.
Mackey was arrested a week ago in the first criminal case in the country alleging voter suppression through the use of false tweets.
Seth DuCharme, the acting United States attorney in Brooklyn, whose office is prosecuting the case, said, “With Mackey’s arrest, we serve notice that those who would subvert the democratic process in this manner cannot rely on the cloak of internet anonymity to evade responsibility for their crimes.” The alleged crime is a conspiracy to “oppress” or “intimidate” anyone from exercising a constitutional right, such as voting. The charge carries a maximum sentence of 10 years in prison. Prosecutors allege that 4,900 really gullible and lazy Hillary Clinton supporters were fooled by Mackey’s scheme into trying to vote for her using a phone number publicized on social media. Mackey and his co-conspirators joked online about about tricking “dopey” liberals.
There is no question that what Mackey et al. did was unethical, dishonest, unfair and sinister. However, I find it hard to understand how he can be prosecuted while the deceptions of others whose efforts to mislead voters and either dissuade them from voting or get them to vote for a candidate they otherwise would not have were far more widespread and had far more impact on election results. My guess is that this charge is harassment, and harassment based on partisan intimidation.
Were not the inaccurate and manipulated polls constantly reported by the new media before the 2020 election designed to “oppress” Trump supporters and Republicans, to pick just one example? Didn’t the biased news coverage both after the 2016 election and before the 2020 election have the same motive as Mackey’s tweets? What about colleges that created a hostile environment for conservatives on campus, making political organizing by conservative studentdifficult or even impossible?
Like so many of the one-sided measures we have seen developing since the 2020 election as the Left sets out, rather brazenly, to institutionalize double standards that discourage dissent and opposition, this prosecution appears to be a First Amendment attack. The Supreme Court has decreed that lying is constitutionally protected unless it results in other crimes, like fraud. The lies of journalists, pundits, performers, candidates and other social media “influencers”—especially their Big Lies—do far more damage than Mackey’s stupid social media tricks.
How is it equitable to threaten him with prison for misdirecting a few thousand idiots—-yes, believing something so easily checked is cretinous—while Democratic and progressive trolls, many in elected positions or with press credentials, convinced smarter Americans that President Trump killed 400,000 people and Russia was responsible for spreading lies about Joe Biden’s wonderful and absolutely blameless son?
I doubt the charges against Mackey will hold up in court if he has the integrity and resources to challenge them. He’s an asshole for sure, but the Bill of Rights exists to protect assholes.
Ethics Alarms 
I’m kind of relieved to see this. For the last ten or twenty years, Democrats have been saying Republicans have been denying people the right to vote. I’ve never known what they’ve meant. It’s just been a talking point along with “everything’s terrible” and “income inequality” and so forth. So this is what they’ve been wailing about. Good to know.
This is terrifying.
Oh, good. I’m not the only one.
Or are you terrified that there are actually people voting in elections who are so dumb that they would fall for a stunt like this?
That they walk amongst us…..
I’m just a couple of degrees of separation from Mackey (yes, I have a dark side) and as far as I know he intends to fight back and has a pretty solid strategy both in and out of the courtroom. I really hope this goes his way and quickly because this is First Amendment threatening stuff.
The advert has no conceivable objective other than to mislead for the purposes of screwing up an election. It is clearly evil, published with evil intent, and there can be no other conceivable explanation. Texting a vote in this way is in common use for opinion polling and game shows. The advert is not obviously fraudulent.
In contrast it is certainly arguable that errors and misjudgments in the Administration resulted in otherwise avoidable deaths. I have not seen any accusation in the reputable media that ‘President Trump (personally and intentionally) killed 400,000’ and the accusation would be obviously ridiculous.
If the Law cannot differentiate between these two quite different situations, then I agree with Mr Bumble : “The Law is an ass”. (Ref Charles Dickens).
1. Trust me on this: many, many statements have been make from non-wackos claiming that all pandemic deaths in the US were Trump’s doing. Usually this paired with the lie that he claimed the virus was a hoax. Biden has repeated this lie. (Trump said that the effort to blame him for the virus was a hoax….bad choice of words, but that’s Trump.)
2. I agree that the memes were evil, or as I called them, sinister. Lots of speech is evil. Stupid people are especially vulnerable, but the law can’t protect them from everything, and shouldn’t.
3. The big Lies that misled voters about reality robbed far more citizens of their informed vote than the Twitter hoax That’s the point.
If I recall the progressives got a big laugh when Tik Tok users registered for tickets to Trump campaign events with no plan to show up so that others that wanted to hear Trump could not do so because all the available tickets were effectively trashed by Tik Tok users. It would be far easier to determine whether or not you could text your vote by phone than to know that your processes for organizing your audience were fraudulently impeded. I doubt the DOJ gives a damn about that when you can prosecute your enemies.
Yep.
jvb
Any misrepresentation is fraud of a sort. Aside from what the legal meaning of “oppress” and “intimidate” might be here, the question is what acts are considered criminal fraud in the U.S., (which has generally been less restrictive of speech than Australia, Britain, etc.). There may be factors that must be considered here that wouldn’t apply elsewhere, such as whether the fraudster received anything of tangible value, or if the “victim” had any reason to personally expect they could rely on information from him. Just spitballing here; I’m not a lawyer.
If all it takes is a lie that might have caused someone to waste their vote, just about every politician and many of his/her supporters could be prosecuted after every election.
There were identical, 1:1 examples of Leftists doing the exact same thing Mackey did during the election. On Twitter. Not only are they not being prosecuted, but they didn’t even get a “this is disputed” tag.
There is no ground to stand on from which to defend this and still maintain a semblance of personal integrity.
It is quite literally targeted political persecution.
Has anyone checked to see how many of those 4900 actually went to the polls knowing it was a trick or thinking they could vote twice? It seems to me that if they all went about voting normally the crime of intent to defraud may be misplaced.
“The advert has no conceivable objective other than to mislead for the purposes of screwing up an election.”
Seems to me that Biden stated to the people that he would not ban fracking on federal lands or stop the Keystone pipeline but he immediately did so. Was that not an objective to mislead? Of course it was.
Why is what he did evil? Obnoxious. Tricky. But, evil? I am not seeing the evil of it all. PT Barnum said some stuff about suckers.
jvb
I think taking advantage of stupid people is always evil. Doing so to warp an election is doubly so.
I remember from many years ago a joke that went something like this; Voting this election is predicted to be the heaviest ever. In order to keep the polls from being overcrowded, the voting is being split– The Republicans will vote on Tuesday and then the Democrats will vote Wednesday.
I don’t recall anyone being prosecuted for the attempt to obviously tamp down the Dem votes. Its politics.
In the case discussed today, maybe the guy should get a medal instead of prosecuted as he did his level best to keep idiots who knew little or anything of of the issues at hand from voting
I’ve also repeated this joke once. Only once because I had to explain it was a joke because nobody in the room caught on.
Criminal prosecution of the joker is the wrong solution… Perhaps we need to prosecute public school civics teachers.
I always like to look at the law, and at the charges, to see if they are particularized and actually allege a violation.
It seems to me the particular law at issue is 18 U.S. Code § 241 – Conspiracy against rights. The relevant text would seem to be paragraph 1:
If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or
If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—
What the government is alleging here, apparently, is essentially a conspiracy to cyber-bullying. Attempting to convince others to vote a certain way or not to vote at all is called “electioneering” and is not only legal in the United States, but protected speech under the First Amendment and widely practiced by all political parties 24-7-365, legally and peacefully.
The law criminalizing conspiracies to deprive persons of rights was passed during the civil rights era and was plainly directed at the Klu Klux Klan and similar organizations. As we all know, those groups would intimidate voters of all races, but primarily black people and their sympathizers, by burning crosses, lynchings, threats, and other violent actions to suppress or affect voting against the groups’ interests. Most of their methods were illegal under state and federal law to begin with, but the law in this case provided an additional tool to attack those who planned lawless actions against the rights of others as well as those who carried them out. It is a bit like the RICO laws, which were primarily aimed at those who directed corrupt mob actions but almost never participated in overt criminal activity.
This case, as the legal profession likes to say say, posits a novel theory — that electioneering done with intention to suppress voting is a crime if the government says so. If this case succeeds, it will open up Pandora’s Box on the First Amendment, because it revolves around the idea that “lies” (defined by the government’s take on the meaning and intentions of a word-limited social media platform) in electioneering can deprive a presumably self-aware human being of their rights, rather than fall under the First Amendment protection of an act of political persuasion.
“Lies” in the context of political persuasion are historically almost completely immune to criminal liability, and for good reason — when people in authority can define what the “truth” is, they can arrogate to themselves the power to enforce their version of it as ruthlessly as they like. That is contrary to every intended purpose of the foundation of this country on the most basic possible level. Allowing the government to become the arbiter of truth is a direct path to totalitarian authority and a root-and-branch rejection of the Founder’s vision for American freedom of speech.
None of this should be construed as a defense of what Mackey actually did do — it was unethical and wrong. He is clearly a poor example of a human being who should be shunned by society for his actions. Democrats, Republicans and everyone else should be able to agree that people should not behave this way. Having said that, the people against whom his speech was directed had absolute ability to ignore his words and complete freedom to test their veracity at any time, without consequence to themselves. That flies in the face of the government’s claim of an illegal coercive conspiracy that forcefully deprived others of their rights. How this cannot be electioneering speech fully protected by the First Amendment is completely opaque to me given what we have been presented.
If Mackay’s actions are found to rise to the level of criminal liability based on the public record and depending on the breadth of the finding, then we will see an abrupt end to First Amendment speech in America. Nothing chills speech like the imminent threat of a decades-long stretch in Club Fed.
Oh, and I should add a rather ominous more-than-Orwellian twist — if the government were to get a conviction and later introduce “evidence” that someone died as a result of Mackay’s or his co-conspirator’s actions, they can be put to death. It needn’t be said that the threat of execution takes “chilling speech” to a whole new level.
If there was ever a case where “original intent” was important, this one is quite possibly the archetype.
Excellent analysis, and Comment of the Day.
Thanks, Jack.
And, of course, there’s the case of Kristina Wong, a Democrat who pretended to be a Trump supporter, who implored Trump supporters to vote on the wrong day in the 2016 election. The only difference between Wong and Mackey is that Wong made videos and twitter posts instead of fake ads. Mackey is being prosecuted less than a week after inauguration. Wong isn’t being considered for prosecution. If this is the unity that Biden keeps advocating for, I don’t want anything to do with it.
Some people’s speech is “more equal” than others, apparently.
Still, neither one of them should have to fear criminal prosecution, in my lay opinion.
IMHO both of them should. And under Australian electoral law, both of them would.
Another good reason, in my humble opinion, not to live in Australia, or Great Britain, or New Zealand, or most countries in the so-called “free” world.
But your opinion is most definitely understood as such, and welcome.
Perhaps Australians are not intelligent enough to manage their own affairs and must live in a more totalitarian state for their own protection.
There are plenty of Americans who would happily live in a cage, provided the State kept them fed and warm, and changed their newspaper daily. And plenty of Dunning–Kruger politicians who can’t wait to manage the shelter and make it the cleanest, most perfectest, bestest shelter ever, with free vet care and everything.
I cast no aspersions on the intelligence of Australians. The ones I met, and drank copious numbers of beers with in Pearl Harbor during our annual war games with them were good folks, (“bonza people,” as Crocodile Dundee would say) and were good sailors all.
Countries differ in their approach. What some of us might think of as totalitarian, they think of as promoting safety. Honestly, if governments could be depended upon to enforce restrictions on “hate speech” in a fair, limited, and equal way, it would not really be an infringement except in the most literal sense. There is no real value to public discourse in impassioned, hateful rhetoric, and it can foster violence.
The problem is, governments or other persons in authority are incapable of such high-minded, disciplined, and compassionate enforcement. Rather, they use such statutes to suppress the speech they don’t like and ignore violations for speech they do. Twitter is a perfect example of how this works in practice, even if they are not a government. The risk of promoting violence by dint of angry, hateful words is the price we must pay for restraining the government from controlling who can say what. There are no free lunches.
That’s why we need the First Amendment, and why other governments should embrace free speech also. It is not to place value on any particular speech, but to restrain government from controlling communication and forcing their viewpoint on the populace at the point of a gun. But the impulse is strong, and more “pure” versions of democracy, like parliamentary systems, often turn a blind eye to what James Madison referred to as the “tyranny of the majority.” Free speech is a check on that.
I agree. It’s up to the individual to gather enough information to make a decision. It should not be the job of the government to protect people from their own stupidity.
But this is just another case of the double standard that seems to now be the law of the land.
If the image above is the only evidence of this “crime”, would it not be a fairly solid defense to point out that the fake ad doesn’t directly state that texting as directed by the ad will be counted as a vote? There may be an implication there, but it doesn’t say clearly that texting will cast a legal vote for Hillary. One could just as easily interpret it to mean that texting to that number will result in you receiving information about absentee voting. There are four statements on that image, and none of them outright say that texting will cast a vote for Hillary, nor do the statements all together lead the reader to only one possible conclusion.
Now, if texting to that number resulted in the “voter” receiving a text back that said that their vote had been counted, or something like that, then that would shoot any such plausible deniability all to hell.
I think Jeff the implications of the comments here are you don’t need any plausible excuse in the US. You can lie and cheat all you want with unambiguously evil intent. Don’t try it in Australia or the UK though.
That’s not true at all. Not all lies are protected — in fact, the ones actually likely to do harm are crimes, and fall under our fraud statutes. What you refer to as “cheating” is also a crime, if it’s actual cheating (j.e. fraudulent voting, intimidation, stuffing the ballot box, or paying someone directly for their votes). The Democrats in this country are far more likely to cheat than Republicans, but both parties do it and occasionally get caught.
What you appear to be talking about is political speech, and you really are showing a lack of awareness. Politicians in every country lie all the time, some with “evil intent” and some with more benign justifications, but for the most part, their lies are intended to convince voters to vote for them, and nothing more.
If you attempt to suggest that falsehoods from politicians in the UK or Australia are forbidden and that prohibition is fairly and rigorously enforced, you are mistaken. A simple google search searching for politicians in the England and UK prosecuted for lying finds no relevant results, although I admit it was not exhaustive. I do find lots of articles complaining that politicians lie in both countries, though, and no suggestion that they are bound for jail or criminal penalties.
Politicians lie everywhere, all the time. That includes Australia and the UK.
I’m not particularly concerned with the implications of the comments here, I’m posing a legal question about this case. Would it not be a legitimate defense that the “ad” is ambiguous and never directly makes any fraudulent claims? If the ad said, “Text HILLARY to 55723 to vote for Hillary Clinton in the 2016 presidential election” that would be outright fraud. The way the ad is actually composed, though, doesn’t say anything close to that. One can make all manner of assumptions about what might happen when you text that number, but the ad never makes any direct claims about it. So technically, from a legal standpoint, there are no “lies” in the ad. If 4900 people saw that and thought it was giving them voting instructions that would cast a legal vote, how many others saw it and merely assumed, as I would have, that it was just another political phone-number harvesting scheme to get you on their “pester me for campaign donations” list?