Concerns have been raised concerning the continuing court case of Douglass Mackey, an online troll who was prosecuted in 2021 for spreading “disinformation” via a Twitter meme and who the government has accused of “conspiring” to deny others the opportunity to vote.
The Department of Justice (DOJ) released a press release stating that Mackey, who had over 58,000 followers on his account under the name “Ricky Vaughn,” posted an image on Twitter promoting the ability to vote by text for Hillary Clinton before the 2016 election, prompting at least 4,900 individuals to do so. He was arrested this January and charged with “conspiracy against rights,” which makes it illegal to hurt, harass, threaten, or intimidate any person… in exercising or enjoying any right or privilege, he is entitled to under the Constitution.
Legal nonprofit FIRE ( Foundation for Individual Rights and Expression) protects free speech, and its director of Public Advocacy, Aaron Terr, stated that it is tough to see how any of those principles apply to expressing anything untrue about the election. There is a worrying likelihood that the government’s expansive reading of the Act may also lead it to try to prosecute other election-related speech it feels is incorrect, he added.
Professor of Legislation at the University of California, Los Angeles, Eugene Volokh, said in Tablet Magazine that the government’s broad prosecution of Mackey under this law sets a “disquieting” precedent.
In light of the court’s reasoning, Volokh suggested other actions to prevent qualified persons from exercising their right to vote, such as picketing outside the headquarters of a party or urging the Manchester Professional Firefighters Association to cease its voter turnout efforts, could also constitute a crime.
According to District Court Judge Nicholas G. Garaufis, who denied Mackey’s petition to dismiss on January 23, the case is not about free speech but rather “conspiracy and injury.” As Garaufis put it, the legislation is employed to punish a conspiracy to deceive individuals into staying home from the polls—conduct effectuated by speech, not a crime specific to the statements made to achieve that goal. False speech raises unique First Amendment concerns and, depending on the context, may fall into categories historically exempt from First Amendment protection or require intermediate, not strict, scrutiny.
It “is a question of fact reserved for the jury,” he stated, to determine whether Mackey’s speech is protected as parody. According to William F. Sweeney Jr., assistant director in charge of the FBI’s New York Field Office, Mackey’s actions amounted to nothing short of vote stealing.
He criticized the practice, saying it is a criminal activity that helps erode public faith in “our electoral processes.”
Defamation, fraud, and perjury are punishable under the First Amendment, but as Terr points out, there is no “‘disinformation’ exception.”
He remarked that the line between fact and opinion is frequently difficult to discern. A severe stifling effect on political expression would give the government broad authority to enforce fraudulent election-related remarks. Without a doubt, the government would utilize this authority to censor the speech of its political opponents.
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