Douglass Mackey’s Friday conviction for an election “meme” he posted on his account with over 58,000 followers has legal experts raising alarm bells about its impact on free speech.
A jury convicted Mackey for conspiring to deprive others of their right to vote through a meme he posted during the 2016 election, which advertised a way to vote for Hilary Clinton via text message. First Amendment experts say Mackey’s conviction is based on an expansive interpretation of a Conspiracy Against Rights law that could impact other forms of speech, from satire to lies in election campaigns.
While the First Amendment allows for punishing fraud, “it’s not clear Mackey’s actions qualify as fraud in a legal sense,” Aaron Terr, director of Public Advocacy for the Foundation for Individual Rights and Expression (FIRE), told the Daily Caller News Foundation.
“Fraud generally requires a speaker to make a false statement to obtain money or something of material value from the injured party, who relies on the false statement to their detriment,” he said. Even if Mackey’s actions did qualify, Terr also noted that the Justice Department indicted him using a statute that goes beyond fraudulent speech.
“It criminalizes conspiring to ‘injure’ or ‘oppress’ someone in the exercise of any constitutional right,” he said. “If that vague language covers speech that deceives people into voting improperly, it raises the troubling possibility of the government also applying it to allegedly false statements about political issues or candidates that discourage people from voting, not just misrepresentations about the logistics of exercising the franchise. Anyone who cares about free speech should be concerned about how the government might abuse this vague and broadly worded law to chill the spirited public discourse on which our democracy depends.”
After being charged with Conspiracy Against Rights, Mackey faces up to ten years in prison. Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law at UCLA, told the DCNF there are two primary routes he could take for an appeal.
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