The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Douglass Mackey Convicted for Vote-by-Tweet Meme
Here's the E.D.N.Y. U.S. Attorney's Office press release:
Douglass Mackey, also known as "Ricky Vaughn," was convicted today by a federal jury in Brooklyn of the charge of Conspiracy Against Rights stemming from his scheme to deprive individuals of their constitutional right to vote. The verdict followed a one-week trial before United States District Judge Ann M. Donnelly. When sentenced, Mackey faces a maximum of 10 years in prison….
In 2016, Mackey established an audience on Twitter with approximately 58,000 followers. A February 2016 analysis by the MIT Media Lab ranked Mackey as the 107th most important influencer of the then-upcoming Presidential Election.
As proven at trial, between September 2016 and November 2016, Mackey conspired with other influential Twitter users and with members of private online groups to use social media platforms, including Twitter, to disseminate fraudulent messages that encouraged supporters of presidential candidate Hillary Clinton to "vote" via text message or social media which, in reality, was legally invalid. For example, on November 1, 2016, in or around the same time that Mackey was sending tweets suggesting the importance of limiting "black turnout," the defendant tweeted an image depicting an African American woman standing in front of an "African Americans for Hillary" sign.
The ad stated: "Avoid the Line. Vote from Home," "Text 'Hillary' to 59925," and "Vote for Hillary and be a part of history." The fine print at the bottom of the deceptive image stated: "Must be 18 or older to vote. One vote per person. Must be a legal citizen of the United States. Voting by text not available in Guam, Puerto Rico, Alaska or Hawaii. Paid for by Hillary For President 2016." The tweet included the typed hashtag "#ImWithHer," a slogan frequently used by Hillary Clinton. On or about and before Election Day 2016, at least 4,900 unique telephone numbers texted "Hillary" or some derivative to the 59925 text number, which had been used in multiple deceptive campaign images tweeted by Mackey and his co-conspirators.
Several hours after tweeting the first image, Mackey tweeted an image depicting a woman seated at a conference room typing a message on her cell phone. This deceptive image was written in Spanish and mimicked a font used by the Clinton campaign in authentic ads. The image also included a copy of the Clinton campaign's logo and the "ImWithHer" hashtag.
For my reservations about the case, see here; for the judge's opinion rejecting Mackey's First Amendment defense, see here. Congratulations to prosecutors Erik D. Paulsen, F. Turner Buford, and William J. Gullotta, who won the conviction. Thanks to my colleague Prof. Rick Hasen (Election Law Blog) for the pointer.