If putting misinformation about voting out into the ether is a crime, then politics just became an uncrossable minefield. Yet, this didn’t concern the United States Attorney for the Eastern District of New York, who announced the arrest of Douglass Mackey, 31, as the twitter troll Ricky Vaughn.
“There is no place in public discourse for lies and misinformation to defraud citizens of their right to vote,” said Seth D. DuCharme, Acting U.S. Attorney for the Eastern District of New York. “With Mackey’s arrest, we serve notice that those who would subvert the democratic process in this manner cannot rely on the cloak of Internet anonymity to evade responsibility for their crimes. They will be investigated, caught and prosecuted to the full extent of the law.”
Whether Mackey is Vaughn isn’t entirely clear, as he was “outed” by no less a credible investigative authority as Luke O’Brien at HuffPost, Regardless, the “fraud” for which he’s charged stems from posting this meme.
According to the government, 4900 people bit on this idiocy and “voted” by text.
“Protecting every American citizen’s right to cast a legitimate vote is a key to the success of our republic,” said William F. Sweeney Jr., Assistant Director in Charge of the FBI’s New York Field Office. “What Mackey allegedly did to interfere with this process – by soliciting voters to cast their ballots via text – amounted to nothing short of vote theft. It is illegal behavior and contributes to the erosion of the public’s trust in our electoral processes. He may have been a powerful social media influencer at the time, but a quick Internet search of his name today will reveal an entirely different story.”
Did posting this utter nonsense amount to “nothing short of vote theft”? The complaint charges Mackey with a violation of 18 U.S.C. § 241, which provides:
If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District 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…They shall be fined under this title or imprisoned not more than ten years, or both.
Assuming the conspiracy aspect, did this “injure, oppress, threaten, or intimidate any person”? While it’s obviously false that someone can text their vote, this was twitted to Vaughn’s followers, not targeted at anyone else. And even so, this was some random troll on twitter, not an official of the government misinforming the public on how to exercise their franchise. No one was constrained to do it. No one was constrained to do any more than laugh at this idiocy. After all, does the person exercising their franchise have no agency, no duty, to not be such a dolt as to believe the nonsense spewed by some pseudonymous account on social media?
The hyperbolic characterization of the charges in the government’s press release belies the problem with trying to make this into a crime. Floating lies into the ether, a trap for the unwary if they happen upon it, don’t realize it’s false, don’t bother to find out whether it’s true and act upon it, sweeps an awful lot into the ambit of “oppression.”
And, it should be noted, that just because 4900 people texted to that number does not mean they didn’t realize afterward that it wasn’t real and then go vote properly. Hey, a quick text is easy. The talk with your neighbor afterward, who sadly informs you that you are not the descendant of a Nigerian Prince, clears up the mistake and your only loss was the 3 seconds wasted on texting “Hillary,” or as close thereto as the texter could spell.
Then there’s the nasty involvement of the First Amendment.
There is no place in public discourse for lies and misinformation…
We might not want there to be a place, although that raises the problematic question of who gets to decide what’s a lie. But there is no question here one can’t text one’s vote. So what? The First Amendment exempts from its protection historic classifications. Lies are not among them. Lies, per se, are protected speech, absent falling into some other proscribed category.
Was this meme posted by the twitter account of Ricky Vaughn protected speech under the First Amendment? Absolutely, unless it falls into an exception. All speech is protected, true or false, absent an exception, no matter how unsavory or offensive you may find it.
Was this speech malevolent, or was this some twitter gag, some trick so the MAGA trolls could laugh their butts off at the stupid people who would believe something so obviously idiotic? If it’s protected speech, the motive doesn’t matter.
But what of the exception for speech in furtherance of a crime? This swiftly becomes circular reasoning, as being charged with a crime for speech involving misinformation doesn’t make it a crime. No one was forced to believe it. No one was forced to act upon it, or, more importantly, not act upon the proper method of voting. And, indeed, the complaint fails to show that anyone who texted didn’t figure out the error of their way and subsequently vote correctly.
Social media is replete with bad information, some proffered with good intentions by people who just don’t have a clue that their beliefs are outrageously wrong, and some with bad intentions to mislead people, whether to vote for a particular candidate or to believe that the vote was rigged and the winning candidate is illegitimate.
It may well be reprehensible that anyone knowingly puts false information out into the ether in the hope that some people will be foolish enough to believe them, but that falls far below the crime of conspiring to “injure, oppress, threaten, or intimidate” someone by depriving them of a constitutional right. If they fall for the meme, that’s on them. No one stole their right to vote from them. They foolishly chose to squander it.
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