This is Glenn Logan’s Comment of the Day on the post, “Oppressing The Twitter Troll”:
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; orIf 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-bully. 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, as well as 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 plannedlawless actions against the rights of others as well as those who carried them out. It is a bit like the Civil 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, 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 an absolute ability to ignore his words and also had 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 Mackey’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.