A Show Of Hands On The Trial And Conviction Of Douglass Mackey

Douglass Mackey was convicted by a federal jury in Brooklyn last week of Conspiracy Against Rights during the weeks before the 2016 election by circulating false and misleading tweets that, I think it is fair to say, were aimed at tricking naive, stupid or ignorant Hillary Cinton voters into failing to cast valid votes. The verdict followed a one-week trial before United States District Judge Ann M. Donnelly, and now Mackey faces a maximum of 10 years in prison.

This is an immediate and significant law vs. ethics conundrum.

Mackey was part of an apparently loosely organized effort by Trump supporters in 2016 to use misleading and false tweets and memes like those above to fool Hillary Clinton supporters into believing that they could vote for the Democrat in the Presidential election via text messaging. The question raised by the conviction is whether such internet-based election dirty tricks actually violate the federal civil rights statutes. The relevant one in this case makes it “unlawful for two or more persons to conspire to injure, oppress, threaten, or intimidate any person of any state, territory or district in the free exercise or enjoyment of any right or privilege secured to him/her by the Constitution or the laws of the United States, (or because of his/her having exercised the same).”

Do the examples of Mackey’s work (above) do that? In his defense, his lawyers claimed that the messages were “hyperbole” and obviously satire. In 2016, Mackey’s Twitter profilead about 58,000 followers. The MIT Media Lab ranked the account as the 107th “most important influencer” of the presidential race, whatever that means. At least 4,900 unique telephone numbers texted “Hillary” or something similar to the 59925 text number. Nobody knows it those individuals eschewed going to the polls on November 8, it they were registered voters, or if they were smart enough to put on their shoes before their stockings. If the memes ad tweets had said that Clinton voter could legally vote by saying Hillary’s name three times in the dark in from of a mirror, would that have also violated the statute? Why not? It is only marginally more ridiculous to fall for that as the texting hoax.

“Mackey has been found guilty by a jury of his peers of attempting to deprive individuals from exercising their sacred right to vote for the candidate of their choice in the 2016 Presidential Election,” Breon Peace, United States Attorney for the Eastern District of New York announced.

“We are optimistic about our chances on appeal,” Mackey’s attorney, Andrew Frisch,in an email to Politico.

I think his optimism is justified. On the other hand, such voter misinformation schemes are indefensible, and it would not be a bad thing to have precedents punishing those who execute them as well as the campaigns that encourage such dirty tricks or allow them to occur. On another hand, there needs to be a clear and well-written law indicating what conduct is illegal. It looks like a stretch to say Mackey’s designed-for-idiots scheme constituted a conspiracy to injure, oppress, threaten, or intimidate voters out of their rights.

On still another hand—we’re up to four hands now—the web makes wide-spread misinformation and public confusion a powerful tool to distort democracy.

The fifth hand? There is a First Amendment right to lie, if the lie doesn’t constitute a crime, even if the lie does harm.

18 thoughts on “A Show Of Hands On The Trial And Conviction Of Douglass Mackey

    • John, I think the conduct the statute addresses is standing outside a polling place with baseball bats or rifles, you know, like the black guys in Philly a while ago who scared white people away. But this is definitely a contortion of the admittedly vague language. My question upon reading the reports I saw of this case was, “conspiracy against rights?” What the hell is that? Sounds tortured to me. And isn’t there a First Amendment problem somewhere in there? Will they be bringing a case against the Babylon Bee next? Guys walking around with placards saying “The End is Nigh?”

  1. This was an attempt to ‘injure’ people? Hmmm, that does sound like a bit of a stretch.

    Was the second (or more) person also on trial? It does say two or more persons conspiring.

    On the gripping hand, if people fell for this trick, do we think they would have been able to find their polling place by themselves? They probably have no money because they invested it all with that famous Nigerian barrister.

  2. If this is the case, then Biden injured me by claiming he was a uniter and so many people bought into that election misinformation.

  3. It shocks me that Twitter didn’t censor/flag/delete these tweets. Anyways…

    It’s difficult to believe anyone would think we elect a President the same way we choose an American Idol.
    Clearly a handful of people are badly informed and easily duped. Still, I will concede that in the post-Wuhan era, where many states have opened numerous alternative ways to vote, there might be substantial confusion that leads some to believe that text message was a viable method.

    I’m still convinced the easiest way to address this is to make each Presidential Election day a national holiday and only allow in-person voting at specified voting locations. I suppose absentee ballots could still be a thing, but all other forms of voting are gone…early voting (which is a REALLY bad idea anyways), drop boxes, mail-ins, voting for a friend, being the 10th caller…etc.

    With a single-day, vote-at-a-location scenario, no person has any excuse for falling for any ruse. There is but one way to vote (and one other way if you’re an eligible citizen out of the country). Then Mr. Mackey’s endeavor – regardless of whether it was sinister or not – would have generated a few laughs rather than five thousand invalid responses.

  4. RE The vote that EVIL manipulative Righties continuously try to suppress:

    “Ignorance is not something that lends itself to a meaningful discussion […] SOME OF THESE PEOPLE REALLY SHOULDN’T VOTE, BECAUSE THEY DON’T KNOW WHAT THE ISSUES ARE, and I think people that are, you know, voting in the blind are DOING A DISSERVICE TO OUR COUNTRY by not being better informed. (bolds/caps/italics mine)

    So, who uttered this disenfranchising screed: Beck, Tucker, Ingraham, Kelly, The Donald…The Gotch?

    None other than Über Lefty Kareem Abdul Jabbar (no Righty, he!), and on the steadfastly non-partisan NPR to boot.

    Mercifully, we’re not left to ponder who he was referencing because the talented (and dismayed!) Marc Lamont Hill pounced and clarified that Jabbar meant uninformed White voters.

  5. The conduct doesn’t seem to fit the text of the statute. That tells me that 1) he should not be convicted on this charge, and 2) We badly need a law to prohibit tricking another person into invalidating their vote, or making them believe they had voted when they had not, or intentionally giving false information as to the time and place for voting for the purpose of preventing someone from casting a valid vote.

    • I’m going to assume this statute dates from the 1960s and is aimed at stopping rednecks in the south, including redneck law enforcement, from lingering around polling places and scaring off black voters. This U.S. attorney’s office has been really creative in stretching the statute to cover the conduct involved. I can’t imagine the conviction will survive an appeal to either the Second Circuit or the Supreme Court.

  6. I think his optimism is justified. On the other hand, such voter misinformation schemes are indefensible, and it would not be a bad thing to have precedents punishing those who execute them as well as the campaigns that encourage such dirty tricks or allow them to occur.

    It’s definitely a conundrum. The judge bought the idea that the case was about conduct rather than speech, and used a fractured SCOTUS opinion to justify that reasoning. To be fair, SCOTUS has never spoken clearly on this point, but I am personally skeptical of the case’s survival on appeal. Eugene Volokh is as well.

    Even if this were a conspiracy or scheme, it is doubtful that the law in question, which makes the object of the conspiracy “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” can be reasonably applied. If it can, perhaps conservative U.S. attorneys might be able to bring a similar case against groups who want to confiscate guns, or against colleges using “hate speech” to deprive students of their First Amendment rights.

    My feeling is that this is the kind of legal misapplication that, if allowed to stand even in an otherwise worthy case like this, it will send us careening down the slippery slope to a bad end.

    • There are already gun bloggers regularly calling for using this statute, maybe a third of the posts on this particular blog reference the law in relation to prosecuting politicians and control advocates:

      One weird aspect is many people have called out posts of similar memes directed at conservative voters… granted none had shown evidence the same reach. So the law is only enforceable of it has a wide reach? Even weirder… If this conviction does indeed get overturned–can the prosecution be charged under the same law for conspiring against Douglass Mackey’s First Amendment rights?

  7. The ethical approach to fools is to teach them how to think better, not to take advantage of their foolishness. This scheme would only count as satire if they did throw in something like chanting in front of a mirror.

    That said, I do have limited sympathy for anyone who was too stupid to accept such a preposterous idea as voting by Twitter or text message (who would figure out the accounts/phone numbers and figures out what district they’re in? How would voter fraud be prevented if no ID was involved at any point?), without even bothering to find an official source to verify the announcement.

    Unethical though the scheme is, it can’t be illegal unless they committed fraud by impersonating an official source or authority for the election process. It’s the voters’ responsibility to make sure that’s where they’re getting their logistical information, instead of getting it from random ads. If they can’t do that much, I think they’re ethically estopped from complaining when they get wrong information.

    • According to the contemporary left, all humans are incapable of taking care of themselves and must be assisted in any and all activities by a government program. The flim-flammery at issue here goes right to the heart of this model and must be irradicated.

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