Back in January of 2021, The Gateway Pundit reported on pro-Trump meme maker, “Ricky Vaughn”, who we now know to be Doug Mackey, being indicted just days after Joe Biden took over the White House. Mackey was an anonymous Twitter user who regularly posted political memes poking fun at or calling out then presidential candidate Hillary Clinton. Today marks the beginning of his trial over a century old law that has never been applied to free speech.
In the run up to the 2016 election, Mackey posted a satirical meme telling Clinton voters that they could vote for Clinton by texting “Hillary” to a certain phone number. This is absurd to think it would be taken seriously considering there has never been any discussion about “voting by phone” in the 2016 election run up. And using whatever device one would view Mackey’s tweet through could easily be used to affirm that there is no such thing as “vote by phone.” But an over-zealous DOJ took up the case five years later in 2021, days after Biden occupied the White House, and now Mackey is facing up to ten years in prison. The original tweet as it was posted:
Mackey, at the time in 2016, had more influence on Twitter than CNN, NBC, and the Colbert Report, according to a substack article by Paulos. This deduction by Paulos likely came from the criminal complaint in which the Eastern District of New York cited an MIT Media Lab report that ranked Mackey’s account as the “107th most important influencer of the then-upcoming Election, ranking it above more widely known outlets and individuals such as NBC News (#114), Stephen Colbert (#119) and Newt Gingrich (#141).” The report also states that Mackey had just over 58,000 followers at that time. That number is relevant because a similar post was made by Kristina Wong, currently with 27.4k followers, telling voters that she is “coming out…I’m a Trump supporter” and reminding her “fellow Chinese Americans for Trump and people of color for Trump to vote! Vote for Trump on Wednesday, November 9th.” Obviously, that election was held on November 8th, 2016, the day Wong made the tweet.
This tweet, as published by The Gateway Pundit in January 2021, is still viewable on Twitter to this day:
Hey 🇺🇸Trump Supporters🇺🇸! Skip poll lines at #Election2016 and TEXT in your vote! Text votes are legit. Or vote tomorrow on Super Wednesday! pic.twitter.com/ES34HV0yad
— Kristina Wong ❄️ (@mskristinawong) November 8, 2016
Ironically, Mackey’s post makes no mention of race, color, gender, or any other protected class while Wong’s satirical post is openly targeting “Chinese Americans” and “People of Color,” specifically those “for Trump”. This is likely a 5th and 14th Amendment violation of either the “Due Process Clause” or the “Equal Protection Clause,” respectively, utilizing the same absurdity applied by Biden’s DOJ to Doug Mackey. To be perfectly clear: I don’t believe Wong is in the wrong here, either.
Mackey none the less is still being charged under a 100 year-old law that was intended to prosecute violent acts involving the intimidation against black Americans to keep them from voting. This law has never been used to prosecute free speech. 18 USC 241 states that:
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; or
18 USC 241 does not, however, specifically refer to elections and, therefore, its application in the censoring of free speech could open up precedent with far reaching implications. Eugene Volokh of Tablet and a First Amendment law professor at UCLA writes:
…to return to Mackey the meme-maker, there is no such clear and narrow federal statute. Instead, the statute under which Mackey is being prosecuted bans all conspiracies “to injure, oppress, threaten, or intimidate any person … in the free exercise or enjoyment of any right or privilege secured to him by the Constitution.”
It’s not obvious that deceiving someone into voting in an invalid way qualifies as “injur[ing]” or “oppress[ing].” But if the statute does cover deception, then there’s nothing in the text limiting such deception to speech about the mechanics of voting. Alleged lies about the government or national security or the economy could also be prosecuted, if the government thought they were intended to discourage people from voting. Some might applaud that, on the theory that the law should do more to punish political lies generally. But as we saw above, many courts are quite skeptical about general bans on lies in elections.
Furthermore, according to a follow-up article by Revolver News, the FBI also used a “confidential witness” who pleaded guilty to the same conspiracy charge but is now working with the federal government. Because he is “presently engaged in proactive investigations…” his identity is being concealed from Mackey and his defense team. This seems to be yet another violation of Mackey’s rights, this time of the Sixth Amendment that grants a defendant the right to “be confronted with the witnesses against him.”
Revolver News’s Darren Beatie told Steve Bannon last month that the government hasn’t been able to produce a “single aggrieved party that didn’t vote as a result of this satirical meme.” The Federal Government is now apparently pursuing a criminal charge against a man for a Tweet in which not one single case of an injured party can be presented.
The Eastern District of New York went as far attempting to require the panel of jurors all be vaccinated. This, of course, is a vastly political position in this country at the moment and would have undoubtedly swayed the jury in favor of the prosecution. This order, however, was not adopted.
This case will likely have far-reaching implications with an administration and bureaucracy that seems hellbent on censoring Americans based on what they deem to be “mis, dis, or malinformation”.
Hat tip Paulos