The Volokh Conspiracy

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Free Speech

The Vote-by-Tweet Memes Prosecution Can Go Forward, Court Rules


Here's the opening of what I wrote about the case in Tablet Magazine two years ago [UPDATE: just to be clear, it's just the opening; I go into a lot more detail in the article itself]:

In 2016, a Florida man named Douglass Mackey (using the online alias "Ricky Vaughn") allegedly conspired to distribute a meme aimed at deceiving pro-Hillary voters.

Four years later, Mackey is now being prosecuted (as to this and as to other memes) for violating 18 U.S.C. § 241, a federal law that punishes conspiracies "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"—namely, the right to vote. Lying to voters in a way that keeps them from voting, the theory goes, is a crime.

Is this sort of prosecution constitutional? After all, people often lie in political campaigns. Candidates do it, activists do it, political operatives do it. Can election lies simply be outlawed?

Surprisingly, the Supreme Court has never resolved the question. It hasn't resolved the big-picture question: When can the government punish lies? It hasn't resolved the medium-size question: Can the government punish lies in election campaigns? And it hasn't resolved the particular question: Can the government punish lies about the mechanisms of voting, and in particular about how to vote?

And here's the order from Judge Nicholas Garaufis (E.D.N.Y.) yesterday:

ORDER: Defendant Mackey's 43 motion to dismiss the Indictment is DENIED. Defendant Mackey argues that the Indictment should be dismissed because (1) venue is not proper in the Eastern District of New York, (2) Defendant Mackey did not have fair notice that his alleged conduct would criminally violate 18 U.S.C. § 241, and (3) 18 U.S.C. § 241 is unconstitutional as applied pursuant to the First Amendment.

This court finds first that a reasonable jury could hold, under any one of several theories, that it was reasonably foreseeable that Tweets from a Manhattan-based Twitter personality with thousands of followers would reach or pass through a judicial district as large as the Eastern District of New York, and that venue was therefore properly laid in the district.

Next, the court holds that the statutory and decisional law, and in particular the DOJ's long history of using 18 U.S.C. § 241 to prosecute conspiracies against the free exercise of the right to vote, constituted fair warning under the controlling standard from United States v. Lanier . 520 U.S. 259, 267 (1997). ("When broad constitutional requirements have been 'made specific' by the text or settled interpretations, willful violators certainly are in no position to say that they had no adequate advance notice that they would be visited with punishment").

Finally, 18 U.S.C. § 241 as applied in the Indictment does not, as a matter of law, violate the First Amendment because although the case involves false utterances, it is at its core, about conspiracy and injury, not speech. To the extent that the case does implicate the First Amendment, it is constitutional under the standard for false utterances set forth by the Supreme Court in United States v. Alvarez . 132 S. Ct. 2537 (2012). Although Defendant Mackey contends that the false utterances are protected as satirical speech, that is an issue of fact for the jury. Therefore, Defendant Mackey's 43 motion to dismiss the Indictment is DENIED. The court will supplement this order with a Memorandum & Order in the coming days to further explain its reasoning.

I look forward to reading the judge's full analysis when it's released.