Amicus Brief Related to the Mackey "Vote-by-Text" Meme Prosecution

Russell B. Balikian & Cody M. Poplin (Gibson, Dunn & Crutcher LLP) just filed this brief [UPDATE: link added] on my behalf Friday; they drafted it based generally on some thoughts that I'd expressed in this 2021 Tablet article. Here's the substance of the brief, in case any of you folks are interested:

INTRODUCTION

The First Amendment likely tolerates narrow and clearly defined bans on disseminating knowing lies regarding election procedures—that is, false statements of fact (not opinion, humor, parody, hyperbole, or the like) made with actual malice regarding the time or place of an election, or the procedures one must follow to lawfully cast a valid vote. But Congress has not enacted any federal law that clearly criminalizes such conduct. While some states have passed legislation that comes close to the mark, Congress has debated and repeatedly failed to enact similar statutes. See infra, at 12-13.

Despite the absence of a federal statute specifically on point, the government prosecuted Douglass Mackey for posting messages on Twitter relating to the 2016 presidential election. To achieve that result, the government repurposed 18 U.S.C. § 241, a statute enacted in 1870 to target violence and intimidation by the Ku Klux Klan during Reconstruction. United States v. Price, 383 U.S. 787, 800-05 (1966). Section 241 does not specifically address false factual statements about the mechanics of voting, or even speech about elections. Instead, it broadly prohibits "conspir[ing] 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 or laws of the United States." The district court nonetheless construed the term "injure" to encompass any "conduct that makes exercising the right to vote more difficult, or in some way prevents voters from exercising their right to vote." United States v. Mackey, 652 F. Supp. 3d 309, 337 (E.D.N.Y. 2023). It held that Mackey had "fair warning" that this 1870 statute prohibited posting tweets suggesting that people could "vote by text." Id. at 338, 346.

Whatever one thinks of Mackey's tweets, the district court's broad reading of Section 241 brings the statute into conflict with the First Amendment and risks chilling protected political speech. Courts are rightfully loath to let the government regulate the rough and tumble of speech surrounding elections as a general matter, preferring counterspeech as the appropriate remedy. Consistent with that principle, courts in recent years have invalidated broad election-lie statutes in North Carolina, Ohio, Minnesota, and Massachusetts, holding that they are insufficiently clear and narrow to survive First Amendment scrutiny. See Grimmett v. Freeman, 59 F.4th 689, 692 (4th Cir. 2023); Susan B. Anthony List v. Driehaus, 814 F.3d 466, 476 (6th Cir. 2016); 281 Care Comm. v. Arneson, 766 F.3d 774, 796 (8th Cir. 2014); see also Commonwealth v. Lucas, 34 N.E.3d 1242, 1257 (Mass. 2015). These decisions, read together with the Supreme Court's false-speech jurisprudence in cases such as United States v. Alvarez, 567 U.S. 709 (2012), make clear that a statute prohibiting election misinformation will not survive First Amendment scrutiny unless it is narrowly and clearly limited only to knowing (or perhaps reckless) lies made to confuse voters about easily verifiable facts such as the time or place of voting.

Section 241 does not fit that description. Nothing in its text nor in earlier precedents suggests that it forbids lies while protecting other speech; certainly it is not a narrow, clearly defined statute targeting knowing lies about election mechanics. Accepting the district court's view would dramatically expand Section 241's scope and transform it into a boundless, indeterminate criminal prohibition on any speech that the government (later) deems injurious to constitutional rights. Because the district court's interpretation of Section 241 would render it overbroad and impermissibly vague, the best reading of Section 241—and the one compelled by the First Amendment—is that Section 241 does not reach false speech regarding elections. If Congress desires to regulate knowing lies about election mechanics, it must enact a narrow, clear statute targeting such lies.

ARGUMENT

[I.] The First Amendment Permits Narrow and Clearly Defined Prohibitions on Knowing Lies Regarding the Mechanics of Voting.

[See here for more on this. -EV]

[II.] Section 241 Is Not a Narrow and Clearly Defined Prohibition on Knowing Lies Regarding the Mechanics of Voting.

In this case, the government prosecuted Mackey under 18 U.S.C. § 241. Originally enacted in 1870, see Act of May 31, 1870, ch. 114, § 6, 16 Stat. 140, 141, that statute as revised makes it a crime for:

two or more persons [to] conspire 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 or laws of the United States, or because of his having so exercised the same.

18 U.S.C. § 241. Congress enacted the statute as a broad remedy to the KKK's campaign of terror targeting newly freed slaves in the exercise of their constitutional rights following the Civil War. See Price, 383 U.S. at 804‑06; see also 18 U.S.C. § 241 (companion provision prohibiting "two or more persons [from] go[ing] in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment" of federal rights).

Because Section 241's reference to "any right or privilege" "incorporate[s] by reference a large body of potentially evolving federal law," the Supreme Court has read certain limits into the statute to ameliorate otherwise significant vagueness concerns. See, e.g., United States v. Kozminski, 487 U.S. 931, 941 (1988). The right at issue must be both "clearly established," United States v. Lanier, 520 U.S. 259, 270-71 (1997), and, if only private individuals are charged, must be one that protects against private interference (rather than having a state-action element), see United States v. Williams, 341 U.S. 70, 77 (1951). Before this case, Section 241 had never been interpreted to prohibit purely deceptive speech—and it certainly had never been applied to deceptive speech by private individuals.

When interpreting criminal statutes, courts must avoid unnecessary "collision[s]" with the First Amendment. United States v. Hansen, 599 U.S. 762, 781 (2023). Here, the district court did the opposite, reading the term "injure" broadly to cover purely deceptive political speech so long as it "makes exercising the right to vote more difficult," or in some way "prevents," "hinder[s]," or "inhibit[s]" "voters from exercising their right to vote." Mackey, 652 F. Supp. 3d at 337-38.

That interpretation conflicts with First Amendment principles in two constitutionally significant ways. First, it renders the statute overbroad, because it would "prohibit[] a substantial amount of protected speech," United States v. Williams, 553 U.S. 285, 292 (2008), sweeping in true speech, false speech deriding government policy, and false speech about history, social science, and the like. And second, it renders Section 241 impermissibly vague because it provides "no principle for determining when" speech will "pass from the safe harbor … to the forbidden." Gentile v. State Bar of Nev., 501 U.S. 1030, 1049 (1991). Accordingly, because Section 241 is not a narrow statute that forbids clearly defined knowing lies about the time or place (or other technical mechanics) of voting, the better reading is that the term "injure" does not encompass false—as opposed to coercive—speech that injures people's right to vote.

[A.] The District Court's Interpretation of Section 241 Would Render It Unconstitutionally Overbroad

Courts have regularly invalidated statutes that are "substantially overbroad," Stevens, 559 U.S. at 842, or that are insufficiently tailored to their ends, Alvarez, 567 U.S. at 737-38 (Breyer, J.). A statute, like Section 241 as interpreted by the district court, that imposes criminal penalties on speech is "especially" likely to be found overbroad. Virginia v. Hicks, 539 U.S. 113, 119 (2003). Here, the district court's interpretation of Section 241 sweeps in a substantial amount of protected speech regarding the right to vote and other rights, and lacks the necessary limiting features of other criminal statutes prohibiting knowingly false speech.

To begin, the district court's expansive reading of Section 241 encompasses any speech that purportedly "obstructs," "hinders," "prevents," "frustrates," "makes difficult," or "inhibit[s]" other persons' exercise of voting rights. Mackey, 652 F. Supp. 3d at 336-38 (quotation marks and brackets omitted). This standard is not limited to threatening speech at the voting booth: "[Section] 241 could be violated at any stage that represent[s] an integral part of the procedure for the popular choice," and "in any way that injure[s] [the] right to participate in that choice." Id. at 334 (quotation marks omitted).

That interpretation sweeps in a host of clearly protected speech. It would, for instance, forbid true speech simply because it suppresses voter turnout and thus "prevents" or "inhibits" people from voting. See McIntyre, 514 U.S. at 343-44 (striking down regulation that "applie[d] even when there is no hint of falsity or libel"); Grimmet, 59 F.4th at 692-93 (First Amendment "forbids" criminalizing true speech). A campaign's decision to trumpet news articles explaining why many eligible voters will decline to vote could thus be criminal if it is intended to reduce voting by the campaign's opponents. See, e.g., Sabrina Tavernise & Robert Gebeloff, They Did Not Vote in 2016. Why They Plan to Skip the Election Again, N.Y. Times (Oct. 26, 2020); Sabrina Tavernise, Planning to Vote in the November Election? Why Most Americans Probably Won't, N.Y. Times (Oct. 3, 2018). Even the publication of lopsided opinion polls could be a crime, because "when polls reveal more unequal levels of support, turnout is lower with than without this information," see Jens Großer & Arthur Schram, Public Opinion Polls, Voter Turnout, and Welfare: An Experimental Study, 54 Am. J. Pol. Sci. 700, 700 (2010), which is to say that some voters are "inhibit[ed]" from voting.

Other types of protected speech would similarly be swept into Section 241's scope. Under the district court's reading, peaceful picketing outside a political party's headquarters would be covered by Section 241, since it is designed to "inhibit" people from voting for particular candidates. So too would unsubstantiated claims that the opposing candidate is a crook or a racist, which could be deemed misleading information that "obstruct[s]" or "hinder[s]" people's right to vote by tricking them out of voting for their preferred candidate. Urging a company, school, or other organization to curtail its get-out-the-vote effort and focus on other priorities is also a form of advocacy protected by the First Amendment, but it could be criminalized as speech published "with the specific intent to … prevent qualified persons from exercising the right to vote," United States v. Tobin, 2005 WL 3199672, a *3 (D.N.H. Nov. 30, 2005), so long as the district court's broad reading of Section 241 is accepted.

The district court's view of Section 241 would even sweep in the "Please I.D. Me." buttons at issue in Mansky, which Minnesota argued "were properly banned because [they] were designed to confuse other voters about whether they needed photo identification to vote." 138 S. Ct. at 1884, 1889 n.4. The statute there was much narrower than Section 241, since it was limited solely to speech at polling places (which are nonpublic fora) on election days; but a 7-2 majority of the Supreme Court nevertheless concluded that a law barring "political" apparel in such places still was far too "indeterminate" and primed with "opportunity for abuse" to survive constitutional scrutiny. Id. at 1891. Under the district court's view of Section 241, however, the government could regulate any speech that "hinders," "frustrates," or "inhibits" voting—in any location, and at any time.

The district court's interpretation is also likely to chill speech regarding other constitutional rights. Section 241's text is not limited to protecting the right to vote; it prohibits "injur[ing]" people "in the free exercise or enjoyment" of "any right or privilege secured … by the Constitution or laws of the United States." 18 U.S.C. § 241 (emphasis added). Thus, speech that inhibits people in the exercise of other rights could be criminalized. For example, a climate-change activist opposed to air travel could be criminally prosecuted if she publishes misleading statistics about environmental harms associated with flying. See Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 274 (1993) (the "right to interstate travel" is a right "constitutionally protected against private interference"); see also Hiroko Tabuchi, 'Worse Than Anyone Expected': Air Travel Emissions Vastly Outpace Predictions, N.Y. Times (Sept. 19, 2019). The district court's reading would likewise sweep in the constitutionally protected speech of a civil rights boycott leader who uses the threat of "social ostracism" to discourage black residents from exercising their federally protected right to patronize white-owned stores or restaurants. NAACP v. Clairborne Hardware Co., 458 U.S. 886, 910, 913 (1982); 42 U.S.C. § 2000a. There is practically no limit to the variety of speech that could be chilled by such an expansive reading.

Finally, Section 241 lacks the limiting features necessary to sustain statutes prohibiting certain categories of false speech. Spanning "almost limitless times and settings," Section 241—as the district court construed it—comes with "no clear limiting principle." See Alvarez, 567 U.S. at 723 (plurality op.). Here, the statement at issue was made on a large social media platform, but the statute would apply "with equal force" no matter the context, and would include barstool comments to new acquaintances about voting at 10 p.m. or on a Wednesday. See id. at 722. Moreover, Section 241, unlike fraud statutes, does not by its terms require a showing of materiality or reliance—only that a conspiracy was formed to make false statements. Other courts have found the lack of such limiting features to undermine the constitutional validity of election-speech regulations. See Lucas, 34 N.E.3d at 1249-50.

Concerns about Section 241's breadth and potential to ban protected speech motivated at least one court of appeals to read Section 241 to reach only speech that threatens or intimidates. See United States v. Lee, 6 F.3d 1297, 1298-99, 1304 (8th Cir. 1993) (en banc) (Gibson, C.J., plurality op.) (rejecting jury instruction that applied Section 241 to speech that "inhibit[s]" or "interfere[s]" with the exercise of rights). As one judge noted in dissenting from the later-reversed panel opinion, "a great deal of speech is sufficiently forceful or offensive to inhibit the free action of persons against whom it is directed, in the sense that it would make someone hesitate before acting in a certain way"; in fact, that "is the very purpose of speech: to influence others' conduct." United States v. Lee, 935 F.2d 952, 959 (8th Cir. 1991) (Arnold, J., dissenting) (emphasis added)). The district court's interpretation in this case raises the same overbreadth concerns.

Here, Congress could substantially achieve its purported objective of ensuring that "voters have accurate information about how, when, and where to vote," Mackey, 652 F. Supp. 3d at 347, through "a more finely tailored statute" that is "less burdensome," Alvarez, 567 U.S. at 737-38 (Breyer, J.); Stevens, 559 U.S. at 481-82 (an overbroad statute is not finely tailored). And the potential misapplications and abuses of reading Section 241 to cover deceptive speech substantially exceed whatever lawful applications may be found. Williams, 553 U.S. at 292. As a result, the district court's interpretation renders Section 241 overbroad.

[B.] Applying Section 241 to Cover Speech Would Render It Unconstitutionally Vague

Section 241 has been described as "the poster child[] for a vagueness campaign." See Hope Clinic v. Ryan, 195 F.3d 857, 866 (7th Cir. 1999), judgment vacated on other grounds by Christensen v. Doyle, 530 U.S. 1271 (2000). Applying it to pure speech only magnifies those already significant vagueness concerns because it is unclear what speech would violate the statute, and whether similar "false speech" would "inhibit" the exercise of other rights.

"When speech is involved," the Constitution demands "rigorous adherence" to the requirements of fair notice, because fear that a vague restriction may apply to one's speech is likely to deter even constitutionally protected speech. See FCC v. Fox Television Stations, Inc., 567 U.S. 239, 253-54 (2012) (courts must "ensure that ambiguity does not chill protected speech"); NAACP v. Button, 371 U.S. 415, 438 ("precision of regulation must be the touchstone" when determining whether a regulation impedes on First Amendment rights). Where "the law interferes with the right of free speech," courts have required exacting statutory precision. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982); Button, 371 U.S. at 432 ("[S]tandards of permissible statutory vagueness are strict in the area of free expression.").

Here, neither Section 241 "nor a good many of [its] constitutional referents delineate the range of forbidden conduct with particularity." Lanier, 520 U.S. at 265. Section 241 does not define any mental state with respect to a statement's falsehood and is not limited to any particular subject matter. Instead, it refers generally to the Constitution and federal statutes—and court decisions interpreting them—to determine which conspiracies it prohibits. Kozminski, 487 U.S. at 941. Section 241 itself thus offers no "guidelines to govern law enforcement," Kolender v. Lawson, 461 U.S. 352, 358 (1983), in applying the statute to speech. In this regard, Section 241 starkly differs from the state laws discussed above that target specific types of knowing lies about the mechanics of voting. See supra, at 12-13. This lack of "explicit standards" for law enforcement to apply to differentiate between lawful and unlawful speech under Section 241 "invit[es] subjective or discriminatory enforcement." Grayned v. City of Rockford, 408 U.S. 104, 108, 111 (1972).

Even the Department of Justice has previously indicated that "there is no federal criminal statute that directly prohibits" the act of "providing false information to the public … regarding the qualifications to vote, the consequences of voting in connection with citizenship status, the dates or qualifications for absentee voting, the date of an election, the hours for voting, or the correct voting precinct." Dep't of Just., Federal Prosecution of Election Offenses 56 (8th ed. 2017). Here, the government has attempted to read such a restriction into Section 241. But because Section 241 does not "directly" regulate the conduct at issue, see id., the statute cannot provide clarity as to the range of forbidden conduct, let alone with the sort of "precision" that the First Amendment demands, United States v. Robel, 389 U.S. 258, 265 (1967).

Past prosecutions likewise did not anticipate the government's use of Section 241 in this case. Complaints concerning voter misinformation are almost as old as the Republic itself, see Elaine Kamarck, A Short History of Campaign Dirty Tricks Before Twitter and Facebook, Brookings Inst. (July 11, 2019), yet the government has never utilized Section 241 to punish conduct like Mackey's that involves deceptive—as opposed to coercive or threatening—speech. Indeed, other prosecutions under Section 241 almost invariably involve conduct, not speech.[1] There are thus no court decisions clarifying when deceptive speech in the election context crosses the line from vigorous advocacy to unlawful "injury."

The fact that Section 241's state-action limitation is a judicial gloss only enhances the vagueness problem. See United States v. Guest, 383 U.S. 745, 754-55 (1966); Williams, 341 U.S. at 77. If a person can be "injured" in the exercise of their rights through pure speech, the statute's plain text suggests that any "two or more persons" could cause that harm. See 18 U.S.C. § 241. The district court's interpretation of the statute thus suggests that purely private speech would violate the statute if it "inhibit[s]," "frustrate[s]," or "obstruct[s]" individuals from exercising rights that otherwise have state-action requirements, such as the First Amendment right to speak, U.S. Const. amend. I, or the Second Amendment right to "keep and bear Arms," U.S. Const. amend. II. For instance, does protesting gun sales in one's town injure people in exercising their rights under the Second Amendment? The statutory text itself does not answer this question, thereby imposing an impermissible and "obvious chilling effect" on speech regarding any number of constitutional rights, see Reno v. ACLU, 521 U.S. 844, 871-72 (1997)—even those rights beyond the power of Congress to protect from private interference.

Nor can this vagueness problem be solved by retroactively limiting Section 241 solely to conspiracies to prevent voting through knowingly false statements about the mechanics of an election. The Court's analysis in Cohen v. California, 403 U.S. 15 (1971), is instructive here. In Cohen, the Court rejected the argument that a disturbing-the-peace statute could constitutionally be applied to wearing a jacket with an offensive message into a courthouse:

Cohen was tried under a statute applicable throughout the entire State. Any attempt to support this conviction on the ground that the statute seeks to preserve an appropriately decorous atmosphere in the courthouse where Cohen was arrested must fail in the absence of any language in the statute that would have put appellant on notice that certain kinds of otherwise permissible speech or conduct would nevertheless, under California law, not be tolerated in certain places. No fair reading of the phrase "offensive conduct" can be said sufficiently to inform the ordinary person that distinctions between certain locations are thereby created.

Id. at 19 (citations omitted).

Likewise, Mackey was tried under a statute that on its face is equally applicable (or inapplicable) to speech, regardless of whether that speech falsely describes the mechanics of voting. As a result, "[a]ny attempt to support [Mackey's] conviction on the ground that" Section 241 targets only a narrow class of false statements "must fail" because the statute contains no limiting language "that would have put [Mackey] on notice that certain kinds of otherwise permissible speech or conduct" that injures a person's exercise of constitutional rights "would nevertheless, under [Section 241], not be tolerated" if it concerns false information about how to vote. See id. "No fair reading" of the statutory phrase "conspir[ing] to injure … any person … in the free exercise or enjoyment of any right or privilege," 18 U.S.C. § 241, "can be said sufficiently to inform the ordinary person that distinctions between" false statements about the mechanics of voting and false statements about exercising other federal rights "are thereby created." Cohen, 403 U.S. at 19.

The "government may regulate in the area" of First Amendment freedoms "only with narrow specificity." Button, 371 U.S. at 433. Because Section 241 provides "no principle for determining when" speech has "pass[ed] from the safe harbor … to the forbidden," Gentile, 501 U.S. at 1049, interpreting it to encompass any kind of injurious speech would make it "susceptible of sweeping and improper application," Button, 371 U.S. at 433. As a result, people may well "steer far wide[] of the unlawful zone" and avoid speaking at all. Baggett v. Bullitt, 377 U.S. 360, 372 (1964). The First Amendment does not permit a reading that produces such a result.

CONCLUSION

The First Amendment tolerates narrow, clear statutes that target knowingly false speech concerning the time, place, and manner, or other technical mechanics of an election. But Section 241 is not such a statute. This Court should reverse the decision of the district court.

[1] See, e.g., United States v. Butler, 25 F. Cas. 213, 220 (D.S.C. 1877) (conspiracy to murder a freed slave); United States v. Stone, 188 F. 836, 839, 840 (D. Md. 1911) (printing ballots that made it "impossible" for illiterate voters to vote for Republicans); United States v. Mosely, 238 U.S. 383, 385 (1915) (refusing to count valid ballots); Ryan v. United States, 99 F.2d 864, 866 (8th Cir. 1938) (altering ballots); Crolich v. United States, 196 F.2d 879, 879 (5th Cir. 1952) (forging ballots); United States v. Anderson, 417 U.S. 211, 226 (1974) (casting ballots for fictitious persons); United States v. Haynes, 1992 WL 296782, at *1 (6th Cir. Oct. 15, 1992) (destroying voter registrations); Tobin, 2005 WL 3199672, a *1 (jamming telephone lines to obstruct ride-to-the-polls service).

Comments

[damikesc]

Courts should always err on the side of more speech, not less.

[Rev. Arthur L. Kirkland]

Except, from the conservative perspective, when drag queens, Muslims, gays, Blacks, or access to abortion are involved.

Is this an attempt to curry favor with Donald Trump, who might be someone's last, lone hope with respect to the federal bench?

[Roger S]

Yes, drag queens grooming kindergarteners are not so popular among conservatives.

[Sam Bankman-Fried]

You need to sashay away!!

[Rev. Arthur L. Kirkland]

Conservatives tend to be bigoted -- sometimes aggressively -- with respect to just about anything involving gays, lesbians, transgendered people, drag queens (and plenty of other Americans).

In less advanced jurisdictions, where conservatives influence enactment or enforcement of laws, that bigotry can be promoted by state action. In more educated and modern jurisdictions, not so much, so the conservatives must settle for whining and hurling slurs.

[Roger S]

Maybe so, but conservatives allow gays to have free speech to express their opinions. Censorship comes almost entirely from the Left.

[Rev. Arthur L. Kirkland]

.

conservatives allow gays to have free speech to express their opinions

Wrong. Are you lying, or merely an uninformed dumbass?

[Sarcastr0]

Roger, you want to deport an American citizen for bad blog posts.

Your inconsistencies with yourself continue to pile up!

[Krychek_2]

Would it have been protected by the First Amendment for Republican operatives to stand outside polling places on election day and tell Democratic voters that they needed to vote at a different location (and then given them the address of a vacant lot across town)? If not, how would that be different?

[Armchair]

There are a number of laws against electioneering near polling places. Differs by state, but here's a list by state below. Typically laws against electioneering as described do not violate the 1st amendment.

https://www.ncsl.org/elections-and-campaigns/electioneering-prohibitions

[Rev. Arthur L. Kirkland]

Laws governing conduct at or near polling places tend to be restricted to locations quite close to the polling place door. A misleading sign at the entrance to a parking lot (or at the front door) associated with a polling place, for example, often would not be governed by laws controlling electioneering.

Anyone familiar with American elections should understand that political parties and campaigns reflexively post signs and employ "greeters" distributing slate cards -- all of which constitutes electioneering -- at polling locations every election day.

[hobie]

Can proscribed electioneering occur anyplace other than a polling center?

[arch1]

I tried three times to mentally list at-least-semi-plausible interpretations of this question, each time exhausting my brain before the list:-)

[Alpheus W Drinkwater]

I think he's asking if bans on electioneering are valid anywhere besides in close proximity to polling places.

[Dr. Ed 2]

Because the Town Clerk would have the police officer(s) assigned to the polling place arrest them on the spot, and the charge(s) would involve some defiance of her lawful authority.

HOWEVER one of the issues raised in past elections (2000?) was the presence of uniformed Black Panthers outside the polls intimidating White (Republican) voters from voting. That was ignored.

[Krychek_2]

Armchair, and Dr. Ed, I don't think my hypo would technically be electioneering. Electioneering is urging someone to vote for this or that candidate and would include talking to people, handing out literature, carrying signs and the like. Simply giving directions to the polling place (albeit false ones) does not strike me as electioneering.

But the real thrust of my question is whether the false statement is protected. If I can put up a web site intentionally misleading people as to when and where to vote, why wouldn't I also be able to do so in person on election day?

[Brett Bellmore]

I think we have to have some capability to distinguish between satire and fraud, though. Isn't there a point where the false statement becomes so absurd that we've crossed the line into satire, despite the existence of some tiny residue of essentially infinitely gullible people?

So, you show up at the actual polling station, and tell people voting has been moved to the elementary school down the street, that's a plausible falsehood, and thus fraud.

You tell people that they can vote by psychic, just think about how you want your vote cast, and psychics working for the county will record your vote for you, that's utterly implausible, thus protected.

The question would be where to draw the line...

[Krychek_2]

Brett, that depends on how high the stakes are. If you show up at the airport dressed in camouflage fatigues and tell TSA that you have a nuclear missile in your carry-on, later telling them that it was just satire is not going to get you out of hot water. Because with airport security, the stakes are high enough that the potential for causing harm is great enough to where you're going to be taken at your word the first time and won't be allowed to walk it back.

I don't know if any actual Hillary voters were misled by this or not. I can see how a voter of average intelligence could be. If you're not politically savvy, and you don't know how the process works, and it looks like a legitimate Clinton Web site, some people might have actually been disenfranchised. And in close states, it doesn't take that many to potentially swing the result. So no, I'm not inclined to make a satire exception here.

[Tom for equal rights]

You would be hard pressed to find a single person that has previously voted that would not know basic voting procedures

You would be hard pressed to find a single first time voter that did ask questions of his/her friends or parents on how to vote.

Thus the probability of a politically unsavvy voter getting fooled by this parody is zero.

[Nige]

Imagine getting banged up for a scam that had zero chance of succeeding. Idiot.

[hobie]

HaHa! I see what you did there.

[Brett Bellmore]

I'm not sure I'd go that far, because it was in the context of the 2020 election. Remember, in that election there were all sorts of ad hoc and often unprecedented 'adjustments' to elections procedures, often with no statutory basis, or contrary to statute. So prior experience might not have been a reliable guide.

That kind of changed where you'd put the threshold between obvious parody and actionable fraud.

But there has to be a threshold, we can't just go ahead and make saying something untrue about elections a strict liability offense, jokes have to be permitted.

[David Nieporent]

I’m not sure I’d go that far, because it was in the context of the 2020 election.

It was in the context of the 2016 election. One way that should be obvious is that it was telling people to vote by text for Hillary, and she wasn't running in 2020.

[Brett Bellmore]

Yeah, that was stupid of me. OK, I guess I would go that far, then. Didn't even have the excuse of people making random changes to election administration to make it semi-plausible.

[Absaroka]

"Thus the probability of a politically unsavvy voter getting fooled by this parody is zero."

You are overestimating people's intelligence. A non-trivial number of people apparently once thought the country was being invaded by Martians.

[Nige]

No, he's underestimating how people with learning disabilities, poor education, any kind of mental impairment, or who have lives that are busy and stressful - lots of people trying to support families on more than one job, for example - can be taken advantage of if shitheads like this catch them off-guard at the wrong moment.

[Tom for equal rights]

Nige 45 mins ago
Flag Comment Mute User
"No, he’s underestimating how people with learning disabilities, poor education, any kind of mental impairment, "

Oops!
Change that from no one to one - forgot about Nige

[Nige]

See? It's not that it's satire, it's that some people find this sort of fraud funny.

[Tom for equal rights]

Nige 45 mins ago
Flag Comment Mute User
“No, he’s underestimating how people with learning disabilities, poor education, any kind of mental impairment, ”

Nige - no need to prove my point twice or Thrice

Its obvious satire - Though I am beginning to understand why you dont get it.

[Nige]

It's not satire. It's just lying. If you think satire and lying are the same thing, well, that explains a lot.

[Roger S]

That's right, the prosecutors could not find anyone who was fooled.

[Nige]

It fooled Brett into thinking Hilary ran in 2020.

[Randal]

Tom, if you think this is satire, what exactly is the joke?

[Randal]

On the other hand, if this is legitimate, I know one political party that is almost entirely made of rubes. Good to know that this kind of thing is a-ok with you guys.

[Randal]

Truth Social is the only voting machine you can trust in this election! Don't cast your vote on a made-in-China machine controlled by Hugo Chavez. Just post #VoteTrump to @Election2024 to safely and securely cast your official vote for Trump for President!

[VinniUSMC]

Uh-oh. I guess you should go to jail now.

[Nige]

Right-wingers will march to jails and lock themselves in and then complain they're being oppressed.

[Roger S]

One of the top copy/pasted stories of 2016 was that the Pope endorsed Donald Trump. A lot of people thought it was funny. If you were not amused, would you want to prosecute whoever wrote that story?

[Brett Bellmore]

"If you show up at the airport dressed in camouflage fatigues and tell TSA that you have a nuclear missile in your carry-on, later telling them that it was just satire is not going to get you out of hot water."

I've got a friend who literally got jailed for a "terroristic threat" for joking about launching a "Tom Cruise missile" at somebody. So, obvious satire will not protect you when it annoys somebody who has pull with the police.

I think everybody knows by now that TSA areas in airports are joke free zones. That doesn't mean we should tolerate extending that insanity to the entire country.

[Armchair]

I'm using electioneering as a broad catch-all for the laws involved.

The actual laws (again, differing by state slightly) typically are worded as preventing "influencing voters, voter persuasion political persuasion, voter intimidation, interfering with voter, obstructing entrance, hindering voter" (using AZ as a template).

I would believe your hypothetical would fit at least one of those categories

[damikesc]

Well, Black Panthers did exactly that in 2008 and Obama decided to not prosecute after they had already forfeited their case by not showing up at their hearing.

[Krychek_2]

Your what abouting doesn't answer the question of whether the Black Panthers should have had a First Amendment defense.

[Michael P]

Spoiler alert: They didn't, because they made true threats against white voters (beyond purely verbal threats, they were carrying clubs and similar arms as part of their paramilitary uniforms). The Obama DOJ dismissed the case anyway.

[rloquitur]

The Black Panthers had weapons and were calling white people racist names. That comfortably falls within the statute, but Eric Holder didn't prosecute. The same people who like Eric Holder as AG are the same people who want the book thrown at Massey.

Democrats really do suck.

[wolfefan]

IIRC it was the Bush administration that decided not to prosecute - probably because they couldn't find anyone who was actually intimidated. It's similar to the question of whether anyone needed to be actually misled that they could vote by text.

[myself]

Obama decided to not prosecute

You have a Trump-level understanding of how the US justice system works (ie, a bad understanding).

[Rossami]

Not protected because what you're proposing in your hypothetical is plausible. Polling places do occasionally move.
Distinguished from the message above because the message above was not plausible. It was a self-evident parody.

[Krayt]

Throw those bastards in jail and throw away the key.

[Kazinski]

If you read EV's post its very clear he says the conduct is not protected:

"[I.] The First Amendment Permits Narrow and Clearly Defined Prohibitions on Knowing Lies Regarding the Mechanics of Voting."

I think your hypo clearly is an example of a knowing lie about the mechanics of voting, and beyond question is likely to deter or confuse actual voters intent on voting.

But he does say that Congress has to pass a narrow statute that does exactly that, not rely on a claim of intimidation.

I will also note that the penalty for government trying to deter the exercise of core civil rights is just a civil suit with a much higher bar to clear: "the defendant's actions would 'chill a person of ordinary firmness' from continuing to engage in the protected activity;"

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

1. Anybody stupid enough to fall for such a post deserves to be congratulated for removing themselves from the voter pool.

2. 8 years! Hardly a sterling example of useful justice.

[Krychek_2]

But that argument could be made about any type of fraud. Anyone stupid enough to fall for the Nigerian prince scam probably deserves to lose their money too, but that doesn't mean the Nigerian prince shouldn't be prosecuted for fraud if someone were to catch him.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

As the old grifter saying goes, you can't con an honest man. You can only con someone who thinks that are conning the grifter.

And yes, that applies to suckers who think some damned Nigerian prince is going to send them $38M in stolen money. I have zero sympathy them and see no reason to waste tax dollars on them.

[Krychek_2]

So would you then repeal all laws against fraud? Whatever fraudsters can get away with is fine with you?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

My attitude on fraud is that the fraud itself is merely evidence regarding the real crime of theft. Laws against fraud and lying are the equivalent of laws against owning a gun and ammunition, loading the gun, aiming the gun, and pulling the trigger. The crime is killing or injuring someone, not the methods used.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

And as for the Nigerian Prince scam: if the sucker claims fraud by the Nigerian Prince on the sucker, he is as good as admitting he was trying to commit fraud on the Nigerian Prince by getting something for nothing. So if you want to prosecute fraud, better prosecute both of them.

TANSTAAFL.

[Magister]

You can certainly take advantage of well meaning and unsophisticated people; whether you want to say that's not a con is up to you, but any true Scotsman would recognize it as such. Grandparent scams, for example.

[Randal]

Speaking of well-meaning but unsophisticated people...

Around 3 in 10 Americans still believe ivermectin is an effective treatment for covid.

Now there's a notoriously gullible segment of voters. I have a great new fool-proof (get it?) Biden re-election strategy formulating in my mind...

[Alpheus W Drinkwater]

Does that old internet game still work? Typing "Around 3 in 10 Americans believe..." into Google and seeing what comes up.

[santamonica811]

Some crazy-high number of Trump supporters STILL believe the 2020 election was stolen. Way above 50%. While it's hard to imagine that level of stupidity on such a massive level (we're talking about 10s of millions of people, for God's sake!!!); polls taken by both conservatives and liberals yield these same results.

The only definitely falsehood I can think of is: "Surely no one is stupid enough to have believed ______." Because, yes, enough people are absolutely stupid enough to have believed it. (And, extra stupid enough to keep believing it, even when slammed over the head with evidence to the contrary.)

Slouching towards Armageddon. 🙁

[Nige]

Yes, grifters would say that, wouldn't they? They're grifters.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Ad hominem? Try addressing the actual comment.

[Rev. Arthur L. Kirkland]

Do you have a law degree? Any advanced degree? An undergraduate degree*?

Unwitting victims are conned regularly. Do you live in a hermit shack, accessing this blog with a handcranked internet connection you received for a contribution to a Ron Paul campaign?

*Backwater religious schooling does not count.

[Nige]

Ad hominem? Pointing out that grifters would of course blame their victims? That’s your idea of ad hominim? Your comment blaming grifters’ victims is literally you being grifted. Don’t worry, I don’t blame you, I blame the grifters.

[myself]

1. Anybody stupid enough to fall for such a post deserves to be congratulated for removing themselves from the voter pool.

Poll tests are unconstitutional.

[Longtobefree]

Instead, it broadly prohibits "conspir[ing] 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 or laws of the United States."

Well, good luck. Because that reads like what is going on now with social media and the current administration.

[Stephen Lathrop]

The brief deserves preservation atop a softly-lighted pedestal, centrally located in a domed rotunda, forming the entrance hall of my proposed Museum of Legal Rationalism.

Here is a counter-argument worth considering. Hyper-rationalist lawyers and judges do not own elections. The jointly sovereign People do. Who supposes the People, after studying the illustration which leads the OP, would conclude the brief featured in the OP better protects the People's power to control government than would enforcement under Section 241?

I think it safe to conclude hyper-rationalist lawyers and judges might conclude that, but not the jointly sovereign People. For them, jealousy about their power seems a consideration more salient than honoring hyper-rationalist legalism as an ideology.

[ReaderY]

See my comment below. The People through their elected representatives also ordained that criminal laws have to provide clear notice of the conduct prohibited, when the First Congress passed the initial Bill of Rights and the State legislatures ratified it.

Everybody is free to make a Due Process argument. The statute may not be unconstitutionally vague, but the vagueness argument being made here strikes me as at least plausible and non-frivolous. A defense lawyer might well be ethically obligsted to make it, and any competent one probably ought to. It’s at the very least the kind of argument defense lawyers routinely make as part of their duty to zealously represent their clients.

So why the vitriol? You seem to imply only a bad, power-hungry person could make this kind of argument. Any ordinary defense lawyer would. Are defense lawyers all bad people? Are they all power-hungry?

[ReaderY]

That is, Professor Volokh isn’t arguing that the First Amendment protects this conduct. He is arguing only that the criminal statute doesn’t specifically proscribe the conduct the defendant was convicted of and is unconstitutionally vague as applied to it.

I think the potential for confusion you just illustrated - thinking he was attempting to argue the conduct was completely protected and couldn’t be proscribed by any law, however worded, and angrily reacting to that - is an excellent reason why the First Amendment isn’t the defendant’s best and shouldn’t be a defense lawyer’s first argument in a case like this.

If you, an experienced lawyer, could misread the amicus brief and reach this misinterpretation, there is some chance its intended audience might as well. A defense lawyer might be better off arguing the case in way that avoids taking that chance.

[Krayt]

That's what I got out of it. It was wrong, and hopefully illegal, somehow. But the quoted law ain't it, without stretching it beyond recognition.

What this post really is is a suggestion for Congress to fix this hole.

[Stephen Lathrop]

ReaderY, I am not an experienced lawyer. I am not a lawyer at all.

Permit me to mention, however, that it does not take a lawyer to understand that your concern about due process does not square with American constitutionalism. That notion puts a continuously-active, ungovernable, all-powerful joint popular sovereign at the apex of American constitutionalism.

That means the Constitution itself is not at the apex. It is instead a decree by which the sovereign acting at pleasure constitutes and constrains government.

A case such as that mentioned in the OP implicates an attempt to evade, and to defraud, the jointly sovereign People in the midst of their practice of the constitutive power—the defining power of their sovereignty. Oaths demanded by that all-powerful sovereign as a condition to receive the gift of office have been sworn by every Article III judge. Those oaths demand action against such fraud, and reprove everything that would condone it.

In effect, this defendant's conduct made him unambiguously a rival for the People's sovereignty. That he is a pipsqueak rival is of no importance. The overriding importance by comparison goes to defend a principle against sovereign rivalries. In any such case, the sworn first duty of an Article III judge is to protect jealously the sovereign's power—and to do so in terms the sovereign expects the oath to impose: jealously, unstintingly, and without equivocation.

There is to be no weighing of some presumptive right of a defendant, at the expense of power the sovereign can never allow compromised. Wise sovereigns do not suffer compromises on questions of power, lest power to force compromise itself lend legitimacy to a rival's impermissible claim.

Too much is at stake. Let the pipsqueak rival suffer a pipsqueak's punishment, or perhaps get forgiveness in a Jeffersonian spirit of magnanimity toward the formerly-ignorant, after a jolt of experience has delivered memorable enlightenment.

The substance of that enlightenment must be that just as the sovereign by unquestioned power vindicates all of its citizens' rights against government, no rights—to do due process or to anything else—can stand against an ungovernable sovereign's decree to the contrary.

It is unsurprising that news of such unconstrained and ungovernable power dismays political thinkers long accustomed to think of the Constitution as at once supreme but inert—and thus rightly a font of power tapped by agency of officers of government, including judges. But as founder James Wilson said in so many words, that view may take a step in the direction of the truth, but does not arrive at it.

The truth arrived at explains that for a judge to reckon a balance of power between a defendant and government, and even to tip that balance entirely in the defendant's favor—in the name of a right decreed and defended by the sovereign—is a thing entirely within the scope of the sovereign's intention. But for the judge to do likewise at the expense of the sovereign itself is another matter. It is not a thing a sworn judge is permitted to let happen in the name of the Constitution. It is not a thing a sworn judge is permitted to let happen at all.

[Absaroka]

A satirical comment in a thread on satire...brilliant! Swift has nothing on you.

(unless it isn't satire ... Oy vey!)

[Dr. Ed 2]

Stephen -- when I was in middle school, my town was using the punch card ballot machines that would later become infamous during the 2000 Florida election.

A couple days after the election, the town clerk would bring them into the school, still with the candidates names on them, and let us "vote" as well. Everyone knew that 14-year-olds couldn't vote (then or now) and that this was just for show.

This was not only legal but encouraged by the adults to build civic mindedness and such -- and, IMHO, not a bad idea.

I'm seeing a lot of "Text 12345" to show your support for various political factions and/or candidate(s) and while it's clear this is data mining, some folks feel it necessary to "vote" in this manner. Or to respond to pollsters -- depending on the mood I'm in, I tell them I'm going to vote for Calvin Coolidge or Andrew Jackson.

"No, not Jessie, ANDREW Jackson..."

Hey, if the dead can vote, why can't I vote for the dead???

[ReaderY]

Context has a great deal to do with whether there is evidence of criminal intent in a criminal case, especially in cases involving speech.

Yes, fish delivery people routinely deliver fish to people’s doors. But that doesn’t establish that Lucobrazzi’s murderers in The Godfather did something innocent when they sent the fish, and had no intention of intimidating a rival gang.

[Tom for equal rights]

ReaderY 3 hours ago (edited)
Flag Comment Mute User
Context has a great deal to do with whether there is evidence of criminal intent in a criminal case, especially in cases involving speech."

ReaderY
Given the long history of various memes, it difficult to ascribe criminal intent - with an obvious parody.

vote for candidate A on Tuesday
Vote for Candidate B on Wednesday

[Nige]

Those aren't parody they're lies.

[Tom for equal rights]

Nige 28 mins ago Flag Comment Mute User Those aren’t parody they’re lies.

Nige – they are lies so obvious that it is satire.

As you previously stated “Nige 45 mins ago “No, he’s underestimating how people with learning disabilities, poor education, any kind of mental impairment, ”

Which explains why you dont understand the satire. You dont need to continue explaining why you dont understand

[Nige]

Lies are always obviously lies to the liar.

[ReaderY]

I don’t see the argument as being fundamentally a First Amendment argument, especially given the initial concession (which I think entirely correct) that a properly worded statute would pass First Amendment muster and the speech involved can constitutionally be prohibited.

The argument instead strikes me instead as primarily a vagueness argument.

While I understand there’s a line of cases that rules prohibiting speech have to be clearer than most, and I recognize thst increases the strength of the argument, it seems to me that vagueness does most of the work. The fundamental argument being made strikes me as basically a rule of lenity argument. You are arguing the language is susceptible to multiple interpretations, it could easily be interpreted to exclude this conduct, and therefore it should be interpreted to exclude it. The First Amendment adds to this by increasing the threshold for the needed clarity, thereby increasing the argument’s strength.

[SRG2]

I think it entirely just for the person to be convicted in first instance, lose on appeal, but then win at the Supreme Court because that way. free speech is preserved but the scum would deserve enduring the process he will have gone through.

[NvEric]

So, we waste time on a trivial situation rather than ignoring persons aiming for money in pointless cases ?

For the Douglas Mackey case, the best option was to ignore it completely.

[Tom for equal rights]

Variations of that meme have been around since 1800’s

Party A votes on Tuesday Party B votes on Wednesday, etc, etc

Seriously going to restrict free speech for what is obviously a joke/ parody?

[Nige]

Play stupid games, win stupid prizes. Lots of frauds and scams have long histories, and some can seem funny and cute when related as a story that happened to someone else.

[Social Justice is neither]

In the name of repressive tolerance you bet your ass Democrats are going to enforce it against anyone outside The Party like the good commies they are.

[Martinned]

This brief would have been more convincing if it actually gave an example of protected speech that might be chilled. (Unless I overlooked one.)

[Dr. Ed 2]

Let me give you three:

Pre-election Polling
Push Polling
Exit Polling

[Martinned]

Care to expand on that? Because I'm not sure how polling would be chilled by this prosecution.

[Randal]

I could see push-polling.

[loki13]

I wrestle with this one internally.

I think of this in two ways. On the one hand, I think we do need to be particularly careful about speech around elections designed to deceive voters regarding the ability to vote. Much in the same way that defamation law always protects truthful speech, all truthful speech should be protected, but when it comes to self-governance (not speech about candidates, but speech about -for example- the time and place of elections) there should be the ability to punish in some way knowing lies that are meant to defeat the ability of people to engage in voting.

On the other hand ...
Any bit of comedy that employs satire, irony, or sarcasm in a proper and correct fashion requires that some portion of the audience be confused (or even hurt) by the comedy.

Ambiguity is not a bug, but the central feature of any type comedy that plays with or invokes satire and irony. Simply put, the possibility that a reader can misunderstand the message is necessary to the proper conveyance of the message.

This ambiguity is not a bug - it is the distinguishing feature.

You'd want to be able to punish people who are knowingly trying to prevent people from voting, without sweeping in those attempts at jokes (and people do joke).

I think that the amicus raises good points, although I would prefer regulation beyond mere threatening speech; I do agree that voter misinformation (stated as such) would be too broad of a term to be useful, but something narrower that specifically targeted attempts to prevent people from lawfully exercising their right to vote would be beneficial.

[Tom for equal rights]

I agree that intentionally presenting false information to prevent people from voting should be a crime.

In this case, its babylon bee level satire , and very similar to other satire that has been around for centuries. Editorial pages have been filled with cartoons with election related jokes since forever.

fwiw, if I had seen that meme in 2016, I might have been tempted to vote just to see what popped up after my fake vote.

[bernard11]

I don't see the satirical element here.

[Artifex]

Yes, as Loki notes …

Any bit of comedy that employs satire, irony, or sarcasm in a proper and correct fashion requires that some portion of the audience be confused (or even hurt) by the comedy.,

Ever consider that maybe people that think exactly like you are the butt of the joke ?

[bernard11]

Ever consider that maybe people that think exactly like you are the butt of the joke ?

That's a pretty fucking stupid response. I certainly would not be fooled.

As I said, I don't see the parody element. Maybe you can explain it to me. What exactly is it parodying?

[Artifex]

Sure.

The underlying joke is that progressive voters who vote for Hillary have roughly the mental capacity of household appliances. The best jokes tend to have some element of truth in them. This joke was aimed at voters who were not progressive nor voting for Hillary and allowed them a collective laugh at just how stupid those progressives are.

What is even more amusing is for you to show up and insist that "No really! Take this seriously! Lots of progressive voters are really this stupid". That's honestly funny.

[Nige]

The real joke is that they appear to have fooled no-one and still got caught out for fraud.

[David Nieporent]

According to the complaint they fooled around 5,000 people, minimum.

[Nige]

That’s on me for crediting claims by defenders that they found nobody who got fooled by it. See how easily it can happen?

[Roger S]

Not one fooled person was presented at trial.

[Estragon]

“This joke was aimed at voters who were not progressive nor voting for Hillary and allowed them a collective laugh at just how stupid those progressives are.”

I just don’t see how you can read paragraphs 25-26 of the complaint and turn around and say that.

[Artifex]

The question was: "What is funny or satirical ?" That's straightforward and remains so regardless of what was in the complaint.

I still find it funny. I find it even funnier that if anything, my own estimates of progressive acumen were a bit on the high side. That I was wrong is also funny.

I suppose this is why we have labels on plastic toys. "Not for human consumption".

[Estragon]

That you find it funny is really besides the point because I am responding to this statement:

“allowed them a collective laugh at just how stupid those progressives are.”

I see… so this was just inside- baseball conservative humor that only MAGAs (like yourself) would laugh at?

Then why the concern that Trump voters would ALSO attempt to vote by phone?

As an aside, since you brought up your sophisticated sense of humor, do you also find the idea of a 70+ year old being struck by a hammer in the entryway of his own home humorous? Just trying to get a sense here.

[Artifex]

So self serious. Your point is what ? If I don't believe your holy creed I must be MAGA ? How convincing ! I totally see things your way. Please don't label me as MAGA and subject me to your moral scolding !

Q: How many feminists does it take to screw in a light bulb ?
A: That's not funny !

As an aside, since you brought up your sophisticated sense of humor, do you also find the idea of a 70+ year old being struck by a hammer in the entryway of his own home humorous? Just trying to get a sense here.

I strongly suspect the Three Stooges or the Marx brothers already tackled this though there is not an easy to find clip on youtube. The best I could do was Sponge Bob and Patrick whacking themselves with hammers. Are you morally outraged by Bugs Bunny and Elmer Fudd as well ?

[Estragon]

Boy, that was a lot of sarcastic crap you typed out while avoiding a very simple question!

[Estragon]

So the three stooges fractured skulls during their bits? Put people in the hospital for weeks?

“The best I could do was Sponge Bob and Patrick whacking themselves with hammers. Are you morally outraged by Bugs Bunny and Elmer Fudd as well?”

There is a crucial difference between Elmer, Sponge Bob, Bugs and Patrick and a real life person, for example Paul Pelosi. I’ll let you reflect on what that might be.

[bernard11]

OK. You're a moron, have no idea what's funny, and a giant asshole to boot.

[Absaroka]

This strikes me as an eminently sensible comment.

[Ed Grinberg]

Thank you, Prof. Volokh.

[Rev. Arthur L. Kirkland]

If a deplorable misfit such as Douglas Mackey is going to find some love anywhere, it will be at a white, male conservative blog hosted by a site for misfits, malcontents, and contrarians.

[Dr. Ed 2]

EV -- I'd take a look at the drama quietly playing out in the snows of New Hampshire (where it is FINALLY snowing)...

New Hampshire state law says that the NH Primary MUST BE at least one week before any other state's primary and the Sec of State must so schedule it. So it's scheduled for next week.

The National Dems are saying to boycott it, that it doesn't count, and that NH will be penalized by loss of delegates. They are explicitly telling voters not to vote in it.

The (Republican) NH AG has sent a "cease and desist" letter to the Dems, reminding them of the laws about voter suppression and the rest.

How is that different from this? Why can't/shouldn't the Democrats (individually and collectively) face the same criminal charge of voter suppression (and possibly any equivalent NH statute)? They are explicitly attempting to suppress voter participation in next week's primary.

Now there are lots of larger questions, including one of if all the small town clerk's offices are going to participate (and the towns pay for) the second primary later this spring. My guess is that some won't...

[Rev. Arthur L. Kirkland]

.

New Hampshire state law says that the NH Primary MUST BE at least one week before any other state’s primary and the Sec of State must so schedule it.

I doubt the Democratic Party is going to continue to flatter barnacle states such as Iowa and New Hampshire, which rely on stupid (and easily frustrated) laws to try to amplify their relevance in a diverse, improving America that has passed them by.

[Dr. Ed 2]

Here's the NH AG's Press Release:
https://www.doj.nh.gov/news/2024/20240108-democratic-cease-desist.html

" Telling any person qualified to register to vote or vote in New Hampshire that the January 23, 2024, New Hampshire democratic Presidential Primary Election is “meaningless,” or soliciting NHDP or any other party to make such statements, constitutes an attempt to prevent or deter New Hampshire voters from participating in the January 23, 2024, New Hampshire democratic Presidential Primary Election, in violation of RSA 659:40, III."

So why *shouldn't* NH prosecute?

[David Nieporent]

So why *shouldn’t* NH prosecute?

Because it turns out that you can't prosecute someone for violating a press release.

[Dr. Ed 2]

RSA 659:40, III is a NH statute.

AKA a state law...

[David Nieporent]

RSA 659:40, III is a NH statute.

Yes, but RSA 659:40, III doesn’t say that calling elections meaningless is illegal. It forbids

(a) bribing voters not to vote.
(b) threatening, coercing, or intimidating voters not to vote.
(c) knowingly attempting to prevent or deter another person from voting by fraudulent, deceptive, misleading, or spurious grounds or information.

The AG focuses on (c), of course. But telling people that the NH presidential primary is meaningless is not fraudulent, deceptive, misleading, etc.; it's in fact 100% true. The presidential primary doesn't count. No delegates — zero, zilch — are awarded based on this Potemkin election.

[SimonP]

Scholars familiar with how democracies falter and die probably can cite many examples of legal reasoning like this, which is cut of the same cloth of Supreme Court decisions that purport to constrain executive authority by sending policy questions back to a legislature they know and expect to continue to be dysfunctional.

Considered as a legal argument, it is probably not wrong to say that construing the statute in question broadly enough to encompass intentionally misleading voters on how they may vote presents First Amendment issues. But at the end of the day, you're arguing to toss the conviction of a person who did conspire to mislead voters on the proper exercise of the franchise, which (if successful) will mean that it then creates a playbook for further dirty tricks. That leaves it up to Congress and the various states to act. But if you also know and expect that Congress and many state legislatures will not get off their asses to ban this kind of dirty trick - where does that leave us? What can we expect the consequences to be, for our democracy?

It seems to me that there are two types of prominent constitutional scholars. There are those who view their role as being advocates for a healthy, sustainable constitutional order, that is not only faithful to the founders' design but that meets the needs of the present day. And then there are those whose ambitions are more narrow and self-centered, who seek to have their arguments embedded into the bedrock of Supreme Court jurisprudence, their cite counts lifted, and who are broadly indifferent to what their success may ultimately mean for our republic.

Of the VC contributors, I feel safe in saying that Ilya, Orin, Will, Jonathan, Dale, and at least arguably Sasha fall into the former category. Josh, David, and Randy clearly fall into the latter. Examples like this lead me to believe that Eugene belongs among the latter group.

[Tom for equal rights]

Great argument for fraud

But Its satire - not fraud

[bernard11]

How is it satire?

[Tom for equal rights]

for you it probably wasnt satire

Not surprising since so many leftist are going DefCon 5 on the voter fraud, surpressing the vote, violating a persons right to vote.

[bernard11]

Actually, you're right.

To me, it wasn't satire. And I am still waiting for someone to explain the joke.

[Social Justice is neither]

It's been explained to you but you're too butthurt about it to accept it.

[Absaroka]

I don't think you can have a satire or humor checklist ... that it's satire if and only if meets criteria A, B, and C. It's like asking whether a joke is funny - not everyone gets every joke. To me, that came across as satire (and I would make the same call it Trump was substituted).

For a non-political example, consider the 'War of the Worlds' broadcast. That certainly caused a lot of (unintended) disruption, but Welles wasn't prosecuted, and apparently (from the wiki page) it is still sometimes broadcast on Halloween. I'm off to youtube to find a copy 🙂

[Nige]

You should still be able to identify a satirical element, other than the farudulent bit being fraudulent.

[Tom for equal rights]

Nige 45 mins ago
Flag Comment Mute User
"No, he’s underestimating how people with learning disabilities, poor education, any kind of mental impairment, "

Nige - You comment above explains why you missed the satirical element

[Nige]

Does it explain why you can't identify it?

[SimonP]

Suppose that I were to put together an election message.

I would style it in every respect to make it look like an official statement from the RNC. The message would be this: given the possibility that Trump may be removed from the ballot in various states due to "disqualification" arguments being made, we (the RNC) are recommending that primary voters vote for their second option, so that we have the information we need to choose the most popular candidate at our convention, in the event that the Supreme Court declares Trump ineligible to run for president.

I then try to get that message out to as many Republican voters as I can possibly reach.

Is it satire?

[Brett Bellmore]

I think one issue here is that on the right, you presume that elections procedures must incorporate some degree of security, and fixity of rules.

So, that voting by text is utterly devoid of security, and besides it's saying you do this on November 8th, when the legal election day is November 7th, is enough that a conservative will look at this and just laugh.

But the left dismisse election security as a trivial issue, and aren't big on fixity of rules, either. Everything must give way to convenience!

For the left-winger, letting somebody vote on November 8th, or by a procedure that has no security at all, doesn't raise the same flags. They'd be open to considering both, so the parody might not be self-evident.

[SimonP]

This is a good demonstration of why conservatives aren’t funny. You can’t even explain your own “humor” very well.

No, conservatives aren’t “laughing” at this image because they’re just very committed to election security. If that were the “joke,” it could just as easily have been about Trump. No, the “joke,” for conservatives, is that only Democrats would be so stupid as to believe this was true. You can see that in many of the other comments here, where people are laughing about the good ol’ days of disfranchisement in the South and self-selecting non-voters.

The reason that it is not very plausible as “satire” is that it is so extensively and carefully styled to read as a Hillary campaign message, which most conservatives can be expected to ignore without paying it much attention. If you were to receive this image in an email from an address that seemed to be the Hillary campaign, or on Facebook, would you read it carefully to get the “joke,” or would you auto-delete/block the message and wonder whether your FB friends feed had been hacked?

The message is designed to catch the attention of and appeal to would-be Hillary supporters. That is the intended audience. And by both your explanation of the “joke” as well as the more defensible one I’ve provided, they wouldn’t find it “funny.”

It was a message designed to mislead. I don’t know why anyone would dispute that. Even many of the people who claim it’s “satire” understand that. Whether it is proscribable under the relevant law, and whether anyone who took it seriously should be voting in the first place, are separate questions.

[Brett Bellmore]

" No, the “joke,” for conservatives, is that only Democrats would be so stupid as to believe this was true."

And Bernard and Queenie rushed to confirm this, you'll notice. I was explaining WHY they'd be as stupid as to believe it might be true: Because they think voting convenience trumps security, and that laws are only suggestions, so voting by hashtag on the 8th doesn't strike them as laughably implausible.

The way any conservative would just automatically assume it had to be a joke.

[Nige]

You were Brettsplaining, not the same thing as explaining at all.

[Estragon]

“The way any conservative would just automatically assume it had to be a joke.”

Oh really? You should read paragraphs 25-26 of the complaint. Because these guys don’t agree with you there.

[Brett Bellmore]

I would find this all a bit less confusing if they hadn't gratuitously replaced all instances of the candidates' names with "Candidate 1" and "Candidate 2".

[SimonP]

I was explaining WHY they’d be as stupid as to believe it might be true: Because they think voting convenience trumps security, and that laws are only suggestions, so voting by hashtag on the 8th doesn’t strike them as laughably implausible.

You don't seem to understand that you're just spinning out why conservatives would think liberals are so stupid as to fall for the ad, not for why actual liberals wouldn't find it funny.

[Rev. Arthur L. Kirkland]

People who want a good laugh should examine the ranking of states by educational attainment, then the ranking of states by Republican registration, then consider Brett Bellmore's contention that Republicans, conservatives, and right-wingers -- the depleted human residue that remains in can't-keep-up states after generations on the wrong side of bright flight, a deplorable concentration of ignorance, dysfunction, bigotry, superstition, backwardness, addiction, disaffectedness, country music, cowboy hates, and pickup trucks -- are the smart ones.

[bernard11]

Fuck you, Brett.

Neither QA nor I think this was true, and I doubt a lot of others do either.

And save your standard rant about security. We all know what it's about, even you won't admit it openly. You have a host of comments about not wanting certain people to vote.

[Social Justice is neither]

There are those progressive dog whistles again. Funny how only progressives can hear the racist code contained within.

It's hilarious watching you beclown yourself.

[Roger S]

No, it had to be styled as a campaign message in order to be a good joke.

[Life of Brian]

The reason that it is not very plausible as “satire” is that it is so extensively and carefully styled to read as a Hillary campaign message, which most conservatives can be expected to ignore without paying it much attention. If you were to receive this image in an email from an address that seemed to be the Hillary campaign, or on Facebook, would you read it carefully to get the “joke,”

I think you're trying a bit too hard here. The title says, in huge type: "vote for her. vote from home." It doesn't exactly take a careful scrub or even a halfway full read to get that it can't possibly be real.

or would you auto-delete/block the message and wonder whether your FB friends feed had been hacked?

Wait, because it's obviously, outrageously, implausible ? That indeed is the point.

[David Nieporent]

I mean, the conservative defense of the J6 insurrectionists is that they're so stupid they honestly believed the election was stolen, so if there are people that gullible, why can't there be people gullible enough to believe one can vote by text?

[Life of Brian]

Not sure if you noticed, but Simon's proposition (which I even quoted) was that it wasn't plausible satire because conservatives would just think it was a Clinton ad and shitcan it. For his point to hold, that would need to be true for the lion's share of the recipients, not just some handful you could imagine.

[Tom for equal rights]

Life of B – “I think you’re trying a bit too hard here. The title says, in huge type: “vote for her. vote from home.” It doesn’t exactly take a careful scrub or even a halfway full read to get that it can’t possibly be real.”

Apparently for some people it does take a full read to figure out its satire – as nige has repeatedly stated he is unable to grasp the satire.

High school government class

[Nige]

And yet you still fail to identify any satirical element actually present in the ad.

[Life of Brian]

Given sufficiently malleable definitions of "fail," "identify," "satirical," and/or "element," I suppose.

Back in the real world, it's just you squeezing your eyes shut and clapping your hands over them just to be sure.

[Nige]

Those terms may be malleable but you've broken 'satire' in a way that is entirely self-satirising.

[Randal]

Nobody thinks it’s real. We’re just trying to figure out why it’s funny.

I figured it out when I realized that MAGA is the perfect target for this kind of thing.

Protect your right to vote! Biden’s Deep State has complete control over the post office. Don’t let them “lose” your vote for Trump like they did in 2020! Instead send your ballot via FedEx to Secure Vote By Mail, 2525 Republican Ave., Tallahassee, FL 32310.

[Life of Brian]

Sorry, but this is utterly insecure. They'd at least need to fill out the ballot in crayon to prevent identification of the voter through trace radioactive isotope signatures in the ink, as well as pay FedEx in Bitcoin.

[Nige]

'But the left dismisse election security as a trivial issue,'

No, the left dislike the way the right use security as a pretext to make voting more difficult for people while lying about the levels of voter fraud, and that was before such claims went nuclear with Trump's Big Lie.

There's no indication that lax security is being parodied in that ad. There's no indication anything is being parodied.

The thing is, people ringing around giving the wrong date for elections and wrong details for where and how to vote happens every election, usually targeting minority areas. Conservatives do find that sort of thing funny, while themselves believing utter absurdities, but it's still fraud.

[Brett Bellmore]

"There’s no indication that lax security is being parodied in that ad."

Oh, you think voting by hashtag would be secure then?

Look, you can deliver the punchline, but you can't force somebody to laugh. But your being selectively humorless doesn't mean this wasn't a joke.

[Nige]

No, again, that's the fraudulent part, where's the joke or the satire? That you find the fraud funny doesn't make it less of a fraud.

[mulched]

C'mon, man! If Nige doesn't think it's funny, it's illegal.

[Nige]

No if the court thinks it's election fraud, it's illegal. Which is kinda funny.

[bernard11]

Oh fuck off, Brett.

Yeah. The right is holy and law-abiding while the left is a bunch of fraudsters. Shove it.

Conservatives are deep into this kind of shit.

[David Nieporent]

I don’t think you can have a satire or humor checklist … that it’s satire if and only if meets criteria A, B, and C. It’s like asking whether a joke is funny – not everyone gets every joke. To me, that came across as satire (and I would make the same call it Trump was substituted).

Okay, but what was being satirized here?

[Artifex]

The stupidity of progressives is being made fun of. Is that really so hard ?

[Stephen Lathrop]

But not only made fun of. Defrauded too. That okay with you?

[Artifex]

I would honestly hope that no one was that dim.

That being said, this ends up a race to the bottom. If next time this same article is labelled "satire" and 4998 democratic voters fall for it instead of the current 5000, are you going to cry "defrauded" because those voters have no clue what satire is ? At some point we have to assume a reasonably educated and capable voter base, or your democracy is simply done for.

[Nige]

THIS ISN'T ELECTION FRAUD IT IS SATIRE YOU CAN TELL BECAUSE WE LAUGH HAHA WE GO SO FUNNY

[Social Justice is neither]

Progressives are stupid enough that they apparently needed fact checks on Babylon Bee articles because they apparently couldn't decipher that "this is a parody site" meant it contained parodies.

[Life of Brian]

Just to add some meat to this most excellent point, here's one classic example as reported by Snopes:

On 1 March 2018, the Babylon Bee web site published an article reporting that CNN had made a significant investment in heavy machinery to assist their journalists "spin" the news they report . . .

Although it should have been obvious that the Babylon Bee piece was just a spoof of the ongoing political brouhaha over alleged news media "bias" and "fake news," some readers missed that aspect of the article and interpreted it literally.

[Absaroka]

With the caveat that humor is in the eye of the beholder, what Artifex said: it's implying that there are Hillary voters dumb enough to fall for it. And, for me at least, it would work equally well reversed, implying that there are Trump voters dumb enough to fall for it. Because ... there are Trump voters that don't strike me as intellectual giants, to put it mildly.

[David Nieporent]

Because … there are Trump voters that don’t strike me as intellectual giants, to put it mildly.

Is there another kind?

[Stephen Lathrop]

Absaroka, in this case the principal satirical element actually makes the fraud worse. The most effective satirical element is the bang-on imitation of top-level advertising graphics and photography, but in a low-rent corrupt cause. Problem is, it is easy to demonstrate that kind of graphical expertise can sell visually messages which the textual content explicitly contradicts.

And by the way, ability to resist that kind of sales pitch correlates pretty strongly with being outside the target demographic. So that's you, in the Hillary market. Point the same tools in your direction, but designed instead to sell something you think you like, and it would be surprising if you turned out equally alert. Plenty of folks will not be.

Which raises a third problem. Elections are not supermarkets. In the supermarket, what you buy makes no conceivable difference to me. In an election what persuades my natural allies to abandon our mutual preference in favor of some fraud makes a loser out of me as well. Individualistic arguments which excuse those frauds do not touch on that aspect.

[Absaroka]

To follow up on my own post, I listened to the original recording of the broadcast. It's astonishing to me that anyone could have been misled. Among many other reasons, it is being broadcast as happening in real time, with news bulletins interrupting a concert. And the timeline is like:

1:00 "Astronomers report strange explosions on Mars"
3:00 "Earthquake near Someville, NJ"
5:00 "Our reporter speaking live from Someville, where a strange cylindrical meteorite has landed"
7:00 "OMG something is coming out! Aaahhhh it vaporized all 30 of the state troopers!!"
9:00 "We're speaking live from Someville with General Smack of the NJ NG, who has deployed 8000 heavily armed troops around the object"

and so on. I mean, they deployed 30 state troopers in 4 minutes, and 8000 troops in 6 minutes. That's a pretty fast response!

Even with the scary music, I don't see how anyone could take it seriously.

[Rossami]

A good amicus brief given the court's decision but the trial court should have tossed that case as an obvious parody.

[Estragon]

Mr. Mackey and his associates didn’t think it was an obvious parody.

[Rossami]

On what evidence do you base your claim that the creators of that content did not think it was an obvious parody?

[Estragon]

The evidence the government introduced at trial. To pick just one example, take a look at paragraphs 25 and 26 of the complaint.

[Brett Bellmore]

Said complaint. They did something goofy making it impossible for me to cut and paste... Pages 18 and 19 of the PDF, anyway.

So, it's incriminating that they were actually worried that somebody might fall for it, and were talking about how to make sure that didn't happen?

I'd think that paragraph 32 would be more incriminating...

[Estragon]

No they weren’t worried that “someone” would fall for it. They were worried TRUMP voters would and so further altered the memes in an attempt “to make sure that didn’t happen”

[bernard11]

Brett, if you can read the complaint, and still think these guys were just clowning around, you are stupider than you imagine Democrats are.

[Brett Bellmore]

I think they were at best skating the line between parody and fraud, and that their best bet as a defense would be lenity.

But I also think we need to draw that line somewhere short of making saying anything untrue about an election a strict liability defense.

[Artifex]

Exactly this.

If I joke that sending me your life saving will save the whales and the butt of my joke are a set of idiots who do in fact send me their life savings, there is a bit of an ethical lapse happening even if they are idiots.

[bernard11]

I also think we need to draw that line somewhere short of making saying anything untrue about an election a strict liability defense.

Well, you have to be careful, but whatever you think of this, you have to admit that there have been not a few serious attempt to mislead voters about times and places to vote, and available means.

I'd say those, because they are targeted at numbers of voters, are more serious than the alleged voter fraud you're always going on about. In fact, I'd say it violates election security.

[Absaroka]

Interested people can find a download link for the complaint at the bottom of this page.

Yep, that doesn't help his case.

[bernard11]

Read the complaint, Rossami, and see what else these guys were up to.

(Hint: It wasn't trying to make a go of political comedy.)

[bernard11]

Rossami,

From paragraph 31 of the complaint:

On or about Nov. 2, 2016, Mackey tweeted the following: "Obviously, we can win Pennsylvania. The key is to drive up turnout with non-college whites, and limit black turnout."

[Social Justice is neither]

Wow, that's mighty racist of you to assume that the black voters are stupid enough to fall for this. You going to apply that logic to every Democrat strategist that says the same thing about impacting turnout? No, because you're all in on repressive tolerance and crushing your enemies by any means necessary.

[Nige]

It's the guy you all are defending who said it.

[Rossami]

wrong place

[Dilan Esper]

I take no position about whether this sort of thing is illegal under current law.

But it ought to be, and more broadly, people who engage in it should be treated like OJ Simpson post-acquittal- welcome on no golf course, at no party, in no place where respectable people gather. Because you have to be a jerk of historic proportions to be trying to mess with people's franchise in this way.

[Dilan Esper]

One other point, about "satire". I have consistently taken the position that there is not some 100% right to engage in satire that deceives people. I realize The Onion filed that brief that says the satire is funnier that way. But there's no constitutional right to make your joke funnier.

The case the Onion filed that brief in involved someone setting up a fake law enforcement webpage. What could go wrong? Maybe it's funnier if people think it's the real thing, but that could also mean someone dies because they think the police have been contacted when they hasn't been. And that interest is, frankly, more important than whether The Onion gets to tell jokes in the funniest way.

If something is satire, and relates to something important like policing or voting, there's absolutely nothing wrong with the government saying it needs to be clearly labeled satire or it is unprotected speech. I don't care one bit if that makes jokes less funny. Larry Flynt labeled his phony ad of Jerry Falwell a parody-- so can any satarist.

[Life of Brian]

If something is satire, and relates to something important like policing or voting, there’s absolutely nothing wrong with the government saying it needs to be clearly labeled satire or it is unprotected speech.

Well, let's take a look at some of the actual content of what was not even a "website," but a Facebook page:

For instance, on his page, Anthony announced a noon curfew as well as a job posting “strongly encouraging minorities to not apply.” The page even had a fake slogan to boot: “We no crime.”

If you're really suggesting that someone could reasonably be so thick as to think that posting on a Facebook timeline like that would actually get a message to the police at all -- much less in a timely manner -- I'm not sure why you think that person would understand the word "satire" at all, much less react differently because it happened to be on the page somewhere.

[Roger S]

It is much worse that Biden is falsely telling Blacks that Trump is a criminal.

[Nige]

He was found liable for sexual assault.

[Roger S]

Found liable by a jury that also determined that the accuser lied about being raped.

[Nige]

No they didn't. So anyway he's a criminal.

[rloquitur]

First of all, the language in the statute really doesn't cover this activity: "conspir[ing] 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 or laws of the United States." doesn't cover this conduct. Obviously, there was no oppression, no threat and no intimidation--so the only thing left is "injure" and the language just doesn't work from the standpoint of fair warning.

Accordingly, most of the debate is off the point. There's also the troubling idea that allegedly bad conduct can be punished simply because a prosecutor and a judge can twist the words of a statute.

And if this conduct is ultimately exonerated, which it should be, there will be no consequences for the scum prosecutor or judge who did this.

One case that springs to mind is the mouse crush case that the Court decided a decade or so ago. If statutes have to be clear about mouse-crushing, then why don't they have to be clear about this.

[billardl]

Democrat judges, prosecutors, politicians and voters should all be sent to the Guillotine or the electric chair, their choice.

[Alpheus W Drinkwater]

yawn

[rloquitur]

And how about this for a defense---they could never vote for Hillary in the first place--they are voting for electors!!

[Frank Drackman]

Damn your stupid facts!

[Roger S]

Biden is politicizing the US DoJ and reviving the Civil War Reconstruction to censor and punish his political enemies. Save our republic by voting for Trump in November.

[Frank Drackman]

Or vote for the DemoKKKrat candidate (still think Parkinsonian Joe's in his last few months) on November 6th!!!!!!!!!

[hobie]

Been a pleasure watching you hillbillies pretzelize yourselves this morning over this subject 'cause we all know why you're doing it.

[Dan Schiavetta]

In these days of two step cell phone identification, where the cell phone in your hand is a more widely accepted proof of identity than your drivers license, it doesn’t take a lot of credulousness to believe that this is a real announcement.

On the other hand, to believe the 2020 election was stolen takes a galactic level of stupidity and gullibility.

[billardl]

Biden is a disgusting piece of shit who has weaponized the DOJ against his opponents.

If some dumb democrats fell for this meme, that's on them.

But low IQ, low information types who are overrepresented in all the social ills and have too much melanin are the Democrats' base.

[Estragon]

Voltage!!!

[Nige]

See the problem? If this comment is satire, it's indistinguishable from typical racist right wing crankery, and is therefore functionally just more racist right wing crankery.

[Mr. Bumble]

Life is hard. It's even harder when you're stupid.

[bernard11]

Must be really tough for billardl.

[Nige]

You have my sympathies for your hard hard life.

[Estragon]

Douglass Mackey seems like your kind of guy. On a scale of 1-10, 1 being “completely disagree” and 10 being “totally agree”, how do you rate the following statements?

“Black people will believe anything they read ok [sic] twitter, and we let them vote why?”

“Naturalized citizens should not get the vote”

“immigrants, the children of immigrants, et cetera cannot be trusted to vote in the interests of their new country”

“[it is] impossible to have a functioning democracy when single women and single mothers vote”

“[the 19th amendment] was a terrible thing”

[billardl]

7, 1, 10, 10, 10

[Randal]

No, this is great. This will be a much more potent weapon in the hands of the left targeting MAGAts than it ever could have been with progressives. They already think elections are screwy! Just be like… This is an Election Alert! The voting machines in your precinct have been targeted by Iranian satellites. Do not vote at a compromised voting machine. Repeat! Do not vote at a compromised voting machine. Emergency votes for President may be securely cast at http://www.protectmyvote.com. Make sure you see the lock icon in your browser, that tells you that your vote is secure!

[Rev. Arthur L. Kirkland]

.

too much melanin

Can anyone remember a day during which the Volokh Conspiracy did not feature some bigoted content?

Can anyone remember a single Volokh Conspirator expressing objection or concern -- other than frenzied outrage when they figure they can pin some alleged antisemitism on liberals who aren't sufficiently hospitable toward Israel's bigoted, belligerent, violent, discriminating right-wing assholes -- concerning the bigotry that is an everyday element of this white, male, right-wing blog?

A single day?

A single Conspirator?

[bernard11]

“immigrants, the children of immigrants, et cetera cannot be trusted to vote in the interests of their new country”

So no one but Native Americans should be allowed to vote.

[Roger S]

Agree, only native born Americans should vote.

[Sarcastr0]

Blood and soil!

[Estragon]

I’m hesitant to offer a definitive view on the merits of the appeal without giving it some further thought. I do agree that a lenity/vagueness argument is non-frivolous; that said I find it unpersuasive at first blush.

I also would echo Mr Esper in saying that if this conduct cannot be reached by the KKK Act, it ought to be outlawed and the perpetrators shunned from polite society. The hypocrisy of conservatives who howl about voting fraud for years on end and then turn around and act as if tricking 5000 people out of having their vote counted is no big deal is both astounding and unsurprising. This is orders of magnitude more votes than anything proven from 2020 that Trump complained about and the reaction is “no big deal/they deserved it.” This is a grave injury.

Second, this thread is actually a great illustration of something that I feel has been happening with more frequency of late— the tendency of certain commenters to come in and argue against what they imagine the facts to be, rather than what they are. I don’t see how you can come in here and say “it’s just satire” after reading the chat logs of these men themselves. And yet it’s all over this thread. This was intentionally deceitful and the perpetrators both acknowledged that explicitly, and also anticipated that the deceit would be effective.

Finally a comment about “satire”. Obviously humor is to some degree in the eye of beholder. But I would suggest when the huckleberries here talk about “humor” or “satire” what they really mean is laughing at the expense of others. Being cheated out of your vote isn’t funny— the “humor” is that something bad happened to Hillary voters. Likewise— your grandpa being assaulted by a stranger isn’t funny but when it happens to someone coded as liberal, all of a sudden it’s a hilarious laugh line at a political rally.

I’ll leave it to others to draw larger conclusions here but the views expressed in discussion on the open thread about a woman and her two children drowning in the Rio Grande suggest a similarly callous attitude towards injury/harm done to those considered to be others.

[Dan Schiavetta]

+1

[rloquitur]

It's very very hard to say that any person was "injured" in his or her right to vote, which is what the statute says. Before and after reading the tweet, the person's right/ability to vote was completely unchanged. The argument that misleading unspecified people in a tweet somehow constitutes an injury is silly. There's a causation problem, and there is the problem that people's First Amendment rights should not turn on the stupidity of others. For a detailed analysis of why the charge was patent BS, see https://www.nationalreview.com/2021/01/the-justice-departments-ridiculous-voter-disinformation-prosecution/

Personally, I hope you get caught in the maw of some criminal/civil justice nightmare. When the government can twist statutes like this, it doesn't end well for society.

[Estragon]

Their votes were not counted. If you can’t conceive of that as an injury, I don’t know what to tell you. 12 of Mr. Mackey’s peers felt otherwise— and with good reason in my opinion.

First amendment rights are not absolute— I would think that is self evident. It’s not that Mr Mackey’s 1A rights are constrained by the “stupidity” of others, they’re constrained in a way that ALL of our 1st A right are.

“Personally, I hope you get caught in the maw of some criminal/civil justice nightmare.”

Well bless your heart. I hope you live a long and happy life. And I hope Mr. Mackey has time to reflect upon his actions in his 7 months and finds the peace and love within to carry on after he gets out in a more productive manner for society, rather than scheming with a bunch of incels on the internet about how to prevent black people and “shitlibs” from voting.

[Absaroka]

"Their votes were not counted."

That has been said a few times on this thread, but I have only seen that '5000 numbers texted'. Which isn't exactly the same thing. Rloquitur's article makes the same point:

"Not that it matters, but the government’s complaint makes no effort to sort out how many of those 4,900 people texted as a lark, how many were eligible to vote, or how many did not vote — much less did not vote because of Mackey’s tweets."

Do you have any information on that? Or would 'It's possible that as many as 5000 votes weren't counted' be more accurate?

[Estragon]

Sure, if that makes you feel better. Mr. Mackey’s conduct was deplorable— and I believe criminal— no matter what the “real” number is.

[Estragon]

[rloquitur]

"I believe criminal"---ha ha.

Their votes were not counted. First of all, voting by text isn't voting, but let's put that issue to one side. They were not "injured in their right to vote," which is what the statute required. Their right was the same before and after the text. That's different with the other words in the statute: oppression, threaten etc. etc. If someone is coerced into not voting, much different story--their right has been affected.

None of this is fraud, by the way.

https://www.nationalreview.com/2021/01/the-justice-departments-ridiculous-voter-disinformation-prosecution/

[Estragon]

Again, I find the vagueness argument non-frivolous but ultimately not convincing at first glance.

Personally, as an initial matter, I would certainly conceive of fooling someone into casting a sham ballot as an injury to their right to vote. I am not convinced otherwise by the amicus brief.

And I am really not convinced otherwise by you repeating yourself over and over and linking Andy McCarthy (three times this morning! Can we get to 5??).

So I think we’re done here?

[rloquitur]

"fooling someone"---you do a tweet, not directed at any particular person, and this is a federal crime under some statute that is directed at violence or threats of violence? Calling that a "stretch" is insulting to all those who have stretched in the past.

And you get the preposition wrong--it's not "to their right to vote" it's "in their right to vote".

And the 1A issue is live--perhaps the fact that no Trump voter would have been fooled by this is the reason that a Biden supporter wasn't prosecuted. And oh by the way, what does your outrage make you think of one Eric Holder, you know the pig that got a judgment against the NBPP for intimidating voters. If Mackey is scum, then what is Eric Holder?

[Estragon]

“perhaps the fact that no Trump voter would have been fooled by this”

Again, I refer you to paragraphs 25-26 of the complaint. Mr. Mackey and his associates believed the exact opposite, and in fact revised the memes in an effort to ensure Trump voters would not believe that they too could vote by text.

[rloquitur]

Recall, that a Biden supporter did basically the same thing and was not prosecuted. I wasn't talking about what Mackey did. And in 'rat world, actually intimidating people outside of polling places, ok, but a meme put out in the world is a crime.

[Estragon]

“Recall, that a Biden supporter did basically the same thing and was not prosecuted.“

Well, no— I don’t recall that. Could you provide some more details?

“Basically” is also one of those weasel words attorneys tend to pick up on and focus in on. But you knew that already from your “BigLaw training”— right?

[Artifex]

"Or would ‘It’s possible that as many as 5000 votes weren’t counted’ be more accurate?"

Of course. They probably pulled the phone records and decided that the rhetoric of assuming their conclusions that these were “defrauded votes” yielded the narrative they want to push. I suppose they could actually determine facts by interviewing the folks that dialled the number, but facts would risk undermining the desired political talking point.

Consider that in addition, this graphic was posted via Twitter on Mackay’s feed which in itself will self-select for a certain audience. I somehow doubt that there are a bunch of progressives subscribed to Mackay’s feed or the repost feeds breathlessly awaiting his next post. My guess is that you will find a tiny fraction, if any, of those calls are people actually fooled.

Then again, maybe I am utterly naive in my ability to believe no one is quite that stupid. I do notice the hardcore progressives have no doubt that their compatriots would fall for this .

[Estragon]

“My guess is that you will find a tiny fraction, if any, of those calls are people actually fooled.”

Well, that’s just a guess. I would guess nearly all the people who texted “Hillary” to the number believed they were casting their vote in a manner by which it would be counted.

Here’s something else for you to guess at: is proof of someone actually being fooled a requirement under this statute?

“Then again, maybe I am utterly naive in my ability to believe no one is quite that stupid.”

You should read the chat logs. These gentlemen did not agree with you.

[myself]

An attempt to defraud someone of their vote seems like a reasonable exemption to free speech in a Democracy.

[rloquitur]

https://www.nationalreview.com/2021/01/the-justice-departments-ridiculous-voter-disinformation-prosecution/

[myself]

Not that persuasive.

Too much is made of the difference between the common language usage of "defraud" and the relevant legal definitions.

It's possible that they get off because section 241 is too narrow, but that doesn't mean that such laws don't or shouldn't exist.

For instance, what about an entirely fake polling station designed to mislead people into thinking they had successfully voted?

[rloquitur]

Much different than a tweet not directed at anyone in particular.

[rloquitur]

Here's a hypo:

Tweet goes out: "Attention city residents, if you want to vote for Hillary in the election, you will need to write in your vote."

Note that Hillary isn't being voted on, but her slate of electors.

What about campaign ads that lie about ballot initiatives?

[Estragon]

What about scurrilous rumors that John McCain fathered an out-of-wedlock baby with a black person?

[rloquitur]

Not criminal . . . .

Are we going to prosecute Barack Obama for "shovel-ready"? Al Gore for calling on Kathleen Harris to violate Florida law?

I am sure you wouldn't like me searching the code books to look to prosecute . . . . how about prosecuting the scumbag HHS secretary. What than a-hole was California AG, he tried to bully reporters into handing back info released to them by the state. Under his direction, they were threatened with a bogus prosecution. That, on its face, violates numerous federal statutes.

Were you ok with the bogus Logan Act investigation of Flynn? Were you ok with the Gibson Guitar raid based on a ridiculous reading of the Lacey Act.

Putting Mackey in jail is un-American, and that you are ok with it means that you are a tyranny fan boy, and I sincerely hope that it happens to you.

[Estragon]

“Putting Mackey in jail is un-American, and that you are ok with it means that you are a tyranny fan boy”

Spending your days scheming up ways to discourage or prevent your fellow citizens from effectively voting strikes me as pretty un-American, frankly. That you are OK with such conduct makes you… I dunno? A royalist?

[billardl]

You assume without evidence that patriots consider these semi-retarded mongrels our "fellow citizens."

[Estragon]

“Not criminal . . . .”

I agree! I knew we could find common ground somewhere. Can you think of any differences between spreading rumors about McCain and the conduct of Mr Mackey?

“I am sure you wouldn’t like me searching the code books to look to prosecute”

Well that of course would involve you getting a degree and passing the bar, for starters. No offense but I get the sense from your comments here that you have not done that quite yet.

I have no idea what Mike Flynn has to do with any of this but suffice it to say I am not surprised that you are a fan!

[rloquitur]

That's the funny thing---I am not a fan of Flynn. He took up the cause of Erdogan. But I have this thing about the partisan use of law enforcement . . . .

"No offense but I get the sense from your comments here that you have not done that quite yet." Dude, I am BigLaw trained and have administered some ass-beatings along the way.

Not really OK with the conduct, although I do find it humorous-"Lighten up, Francis" is my reaction. I really don't care for his views, though. By the by, I loathe John Edwards--but I hated the BS prosecution of him over the Rielle Hunter payoffs.

What Flynn has to do with it is the power of the DoJ and using that power to abuse. Mackey is getting abused. He's not part of a favored group--so he gets the shaft.

[Estragon]

“I am BigLaw trained”

This seems intentionally ambiguous but if what you mean by that is that you are a barred attorney, then yes I agree with this previous statement of yours:

“I am sure you wouldn’t like me searching the code books to look to prosecute”

Your comments on this thread, well… they speak for themselves (see what I did there?)

[rloquitur]

Yes, because I would prosecute the HHS secretary (assuming the SOL hasn't run) for extortion for his threatening of journalists. I'd probably prosecute Kamala Harris for suffering the leaking of PII of donors to causes from her office.

[Estragon]

Keep dreamin! And keep studying!

[rloquitur]

https://reason.com/2023/10/20/hes-going-to-prison-for-twitter-trolling-thats-not-justice/

Kristina Wong did same thing as Mackey.

As for Xavier Becerra and extortion or Harris and the leaks, it's funny how you pooh-pooh those horrendous acts, don't care about the pass given to the NBPP--you're just a partisan hack cheerleading the badge.

[jdgalt1]

The law needs to have a sense of humor for things like this. No one could possibly have believed that ad, and the prosecutor knew that as well as everyone else, so the prosecution was malicious and needs to be not just overturned but punished.

[EscherEnigma]

You're seriously defending people that intentionally and maliciously tried to trick people into not voting?

I knew you were a fucking hypocritical bigoted asshole, but Jesus fucking Christ man, what the hell is wrong with you?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

I'm glad you think government is the equivalent of robbers.

If you can't see the difference between being a sucker for a joke and being targeted by a robber, then you too should not be voting.

[ReaderY]

You’re right. A proper defense should first have made a purely statutory argument that statute doesn’t cover the conduct in the first place, then a constitutional-avoidance argument, and only then a constitutional argument.

Because Professor Volokh is a constitutional law scholar, it’s understandable that he would want to jump directly to the constitutional argument. But while it’s understandable that Professor Volokh would want to focus on his specialty, I don’t think that an argument beginning with the First Amendment is the defendant’s best argument.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Gift my ass. The Nigerian Prince says he wants to deposit $38M which his government says must remain in the country, and your reward for helping him steal that money is $1M.

If you (meaning the sucker, not you the Queen) are so stupid as to think that $1M is not stolen, then you obviously have no respect for Nigeria’s official laws; you are salivating at the prospect of stealing $1M for yourself and helping that Nigerian Prince steal the other $37M.

It’s a funny statist who has such a low opinion of statist laws.

[rloquitur]

So their stupidity impacts someone's free speech rights?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

You can’t con an honest man. The sucker who thinks he is “earning” $1M by helping the Nigerian Prince steal $37M is not an honest man, and if he loses $2500 from his checking account, I shed no tears.

And if you seriously cannot tell the difference between a would-be thief conned by the man he was trying to con, and a robber targeting someone who has no choice in being targeted, then you are a full-blown idiot.

[Krychek_2]

I'm not sure trying to get something for nothing is theft. If it were, everyone who buys a lottery ticket is guilty of theft.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Bullshit. The scam always involves illegal means of getting money out of the country, which by definition is illegal and thus illegal, which all statists ought to recognize as illegal.

You can't con an honest man. Anyone helping a stranger do something illegal is not an honest man.

[Rev. Arthur L. Kirkland]

You can’t con an honest man.

How does this blog attract such a striking concentration of stupid conservative commenters?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

No, you cannot see the difference between being the unwilling victim of a robber and being the willing participant in an illegal scheme.

[Rev. Arthur L. Kirkland]

Voter suppression (often involving racism) is one of three pillars of current Republican Party electoral strategy, with gerrymandering and our system's structural amplification of hayseed votes.

Those three are most of what has kept conservatives relevant in recent elections, and not one of them seems particularly reliable going forward.

One more reason clingers are doomed in the glorious American culture war. Not nearly enough uneducated, superstitious bigots left in America to overcome the diminution of voter suppression, gerrymandering, and undeserved structural amplification.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Lotteries are a piss poor example, but the rules are laid out in advance, and you have to pay for the tickets, so it is not something for nothing.

[Krychek_2]

Well, in the Nigerian prince scenario, the person paid $2,500 from their bank account, so they're not actually getting something for nothing either. At least not any more than the person who buys a $2 Powerball ticket hoping to score $100 million.

[Randal]

And the Nigerian Prince's rules are laid out in advance.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Someone who can't see an obvious joke as an obvious joke is dumber than someone who believes politicians, and again, I shed no tears for someone who thinks voting is so worthless that filling out an absentee ballot is too much work.

[Krychek_2]

You know, every time I’ve gotten a scam like that in my email, the instructions have always been to buy gift cards or use bitcoin. Nothing illegal about that.

You're just wrong on the facts, all the way across the board. Your argument is stupid and you're now digging deeper.

[Drewski]

When I was a young man, I was conned by a guy selling magazine subscriptions door-to-door at reasonable prices to raise funds for a nonprofit. I've known people who got scammed by a fast-talking guy who wanted change for a $20. Restaurants frequently get scammed by people claiming problems with their order and demanding free food. Retailers get conned into accepting fake returns. Spam calls try to record people saying "yes" or "I agree" out of context and use it to sign them up for things.

[Brett Bellmore]

"What’s obvious that it’s satire?"

For starters, the fact that it suggests you do this on November 8th, when the election is going to already be over.

[Roger S]

The evidence that it was satire and understood that way? Not a single voter was fooled by it.

[Nige]

No, that's one of the fraudulent parts. Where's the satire?

[Magister]

Election day 2016 was November 8th.

[Estragon]

One might find that hilariously satirical, if one also believed that Election Day always falls on the 7th, as apparently you do?

ETA: Magister beat me to it

[Brett Bellmore]

To paraphrase, we can tell you the punchline, but we can't make you laugh.

Yes, that was satirical.

[Frank Drackman]

How did your crimes go undiscovered for so long?

[Frank Drackman]

I wouldn't give money to any Prince (OK, I guess I did, when I saw Prince's Movie in 1987("Sign o' the Times" much better than "Purple Rain")
but especially not a Nigerian one.

Frank

[Rossami]

Given the number of people who annually fall for the Nigerian Prince scam, no. Especially when compared to the number who fell for this (approximately none based on the evidence I've seen).

[Estragon]

That’s not what the complaint says

[David Nieporent]

Look, when you're motivated enough to excuse something, you can ignore the actual facts.

[Brett Bellmore]

Yeah, I was somehow, (Just turned 65, so I have an unpleasant inkling of how...) confusing 2016 and 2020.

I will soon be retiring to tend my garden, for so long as I'm up to it. Family history is not promising on that score.

Yuck it up, I go where you will follow...

[Nige]

You have ascribed punchlines (and that's generous) that are simply not present but require tortuous explanation and which are no different to being entertained by descriptions of common grifts. Which are still grifts.

[Noscitur a sociis]

You think the majority of people who hear about the Nigerian Prince scam think it’s plausible?

[Roger S]

At trial, no one testified that any voter was fooled.

[Estragon]

The govt introduced evidence that thousands of people texted the number.

Bonus question: is someone actually being fooled an element of the crime Mr Mackey was charged with?

[Randal]

Yeah that's what's called "fraud."

[Magister]

I’ll turn 64 later this year, so not so far behind but still spry enough to take a victory lap.

[Roger S]

No, Mackey was charged with some ridiculous obsolete Civil War Reconstruction law with no definite meaning.

[Alpheus W Drinkwater]

No one believes that one. But I'm still waiting on my Ethiopian Prince money.

[Rev. Arthur L. Kirkland]

If there is anything on-the-spectrum wingnuts are known for, it’s sense of humor and mastery of nuance.

[ObviouslyNotSpam]

Wasn't there a mens rea that was proven here?

“He was prosecuted not for criticizing Hillary Clinton but for deliberately conveying false information about how one can vote for Hillary Clinton in a way the jury concluded was intended to try to keep people from going to the polling places,” somebody once said.

The DoJ said: "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."