The Volokh Conspiracy
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Douglass Mackey's Vote-by-Text Meme Conviction Reversed, Citing Insufficient Evidence of Conspiracy
A short excerpt from today's long decision in U.S. v. Mackey by Second Circuit Judge Debra Ann Livingston, joined by Judges Reena Raggi and Beth Robinson:
On November 1 and 2, 2016, Defendant-Appellant Douglass Mackey … posted or reposted three "memes" on Twitter falsely suggesting that supporters of then-candidate Hillary Clinton could vote in the 2016 presidential election by text message. Based on these posts, a jury … convicted him of conspiring to injure citizens in the exercise of their right to vote in violation of 18 U.S.C. § 241.Mackey argues on appeal that the evidence was insufficient to prove that he knowingly agreed to join the charged conspiracy. We agree….
The parties do not dispute either (1) that Mackey posted the memes or (2) that his doing so independently would not be a crime under Section 241. Section 241 criminalizes only conspiracies between "two or more persons." As a result, the mere fact that Mackey posted the memes, even assuming that he did so with the intent to injure other citizens in the exercise of their right to vote, is not enough, standing alone, to prove a violation of Section 241. The government was obligated to show that Mackey knowingly entered into an agreement with other people to pursue that objective.
This the government failed to do. Its primary evidence of agreement, apart from the memes themselves, consisted of exchanges among the participants in several private Twitter message groups—exchanges the government argued showed the intent of the participants to interfere with others' exercise of their right to vote. Yet the government failed to offer sufficient evidence that Mackey even viewed—let alone participated in—any of these exchanges. And in the absence of such evidence, the government's remaining circumstantial evidence cannot alone establish Mackey's knowing agreement. Accordingly, the jury's verdict and the resulting judgment of conviction must be set aside….
To begin, the government presented no evidence that Mackey participated in the conspiracy's formation. The government put forth extensive evidence that other members of the War Room, as well as members of Micro Chat and Madman #2, distributed and discussed memes suggesting citizens could vote by tweet or text in the lead-up to the election. But notably absent from this evidence was a single message from Mackey in any of these direct message groups related to the scheme. Indeed, Mackey was not even a member of Madman #2 or Micro Chat from approximately October 5, 2016 through the election. And the record contains no evidence that Mackey posted any messages in the War Room in the two weeks before he tweeted the text-to-vote memes….
The government argues that even if there is no evidence Mackey participated in the planning of the conspiracy, if he viewed the messages related to the conspiracy, he had express knowledge that an agreement had been formed. And by posting the text-to-vote memes with knowledge of this existing agreement, Mackey "knowingly joined and participated" in the conspiracy. We conclude, however, that the evidence is insufficient to establish either of these points as well.
To be sure, nothing is amiss in the government's theory as to how it proved its case. For many conspiracies—whether formed in person or online—the defendant's conduct itself, considered in light of the surrounding circumstances, is highly probative of his knowing participation in the unlawful enterprise. For example, if members of an online message group discussed the details of a plan to commit a terrorist attack, and then another member of that group who did not post any messages went on to participate in that specific attack, the defendant's actions in carrying out the attack might well be enough to support the reasonable inference that he was aware of the group's plotting and knowingly joined the conspiracy….
But the reasonableness of the inference of knowing agreement from the government's circumstantial proof depends on the nature of that proof. Consider United States v. Bufalino (2d Cir. 1960). We famously concluded there that the government had offered insufficient evidence that suspected Mafia members—who gathered in Apalachin, New York, for a prearranged meeting—agreed among themselves, in the meeting's aftermath, that they would conceal that it had been planned in advance. We emphasized the plausibility of the alternative explanation that the participants, who explained variously to law enforcement or to grand juries that they were in the area, inter alia, to visit a sick friend, attend to business, or accompany another, might well have independently decided to lie out of self-interest. We reasoned that although it was possible, as the government argued, that the "lies were told pursuant to an agreement," "[t]here [was] nothing in the record or in common experience to suggest that it [was] not just as likely that each [participant in the meeting] decided for himself that it would be wiser not to discuss all that he knew." …
Here, the conduct at issue—posting text-to-vote memes similar to others circulating publicly online— does not in isolation show awareness of, much less knowing participation in, a conspiracy. The government does not contest that Mackey downloaded the memes from 4chan but argues that the inspiration to do so came from discussion in the War Room. This is possibly true. But the inference is speculative and the government relies largely on conjecture to rule out the alternative scenario: that Mackey's conduct was independent of any knowledge of the War Room discussions. Mackey did not send any messages in the War Room in the two weeks before his text-to-vote tweets, despite having actively participated in the group in the past. Moreover, there were "over 600 messages coming in per day in the War Room" and only 12 posts related to the alleged conspiracy, two of which were sent within one minute of each other and the other 10 within a 20-minute period….
Congress expressly limited Section 241's reach to conspiracies. There are several reasons why Congress may have done so—for example, that "[c]oncerted action both increases the likelihood that the criminal object will be successfully attained and decreases the probability that the individuals involved will depart from their path of criminality," or that "[g]roup association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish." But the critical point is that Congress made this choice—one it has declined to deviate from in the more than 150 years since Section 241's enactment.
Here, the government conceded that Mackey downloaded his text-to-vote tweets from 4chan. It failed to establish, in accordance with its theory of the case, that Mackey became aware of the text-to-vote memes in the War Room and tweeted them pursuant to a conspiracy launched there. That theory was possible, but so was an alternative one: that Mackey became aware of the memes independently and decided on his own to post them. There was no evidence from which a juror could "choose among [the] competing inferences" as to these two scenarios and resolve those inferences in the government's favor. Nor was there any basis in "common sense and experience" to do so. And without establishing that Mackey was at least aware of the War Room posts, the additional evidence (or lack thereof) was inadequate to show his knowing participation in a conspiracy.
The court therefore had no need to discuss the broader statutory or First Amendment issues discussed in my amicus brief.
Yaakov M. Roth (with Eric S. Dreiband, Joseph P. Falvey, Caleb P. Redmond, Harry S. Graver on the brief) of Jones Day represents Mackey. Thanks again to Russell B. Balikian & Cody M. Poplin (Gibson, Dunn & Crutcher LLP) for drafting my amicus brief (based generally on some thoughts that I'd expressed in this 2021 Tablet article).
