Far Right Troll ‘Ricky Vaughn’ Convicted Of Election Interference For Tricking People Into Voting By Phone

Earlier this year, a federal court dismissed almost all of a far right troll's challenge to the criminal case brought against him by the DOJ. Ricky Vaughn" is a notorious social media presence - one who's been repeatedly suspended and banned for his never-ending string of shitheelishness.

I don't sympathize with Douglass Mackey, better known as Ricky Vaughn." He's the kind of person who gives actual conservatives a bad name. He's the kind of person who takes perverse joy in being as awful as possible. But rather than just offend everyone, Mackey/Vaughn has a demographic he prefers to target: the libs."

During the run-up to the 2016 presidential election, Mackey convinced a bunch of his social media followers to start spreading disinformation. This was a particular form of disinformation, though. Namely, Mackey and his acolytes made a concerted effort to convince certain voters they could vote by phone. They even provided a phone number for voters to text their votes to.

It worked, to a certain extent. Mackey's online accounts had thousands of followers. According to the DOJ, nearly 5,000 people fell for his ruse.

So, the DOJ charged him with election interference. Whether or not a 5,000 vote swing would have mattered is besides the point, especially when the Electoral College has the final say. And the DOJ admitted this prosecution was unique: every prior election interference prosecution involved political candidates or government officials interfering with the voting process. Prior precedent - as the court noted - involved ballot stuffing or deliberate miscounting of votes by election officials. To date, no one had been prosecuted for attempting to dupe people out of their votes via social media posts.

The court came down on the side of the law, at least as represented by the DOJ. According to the court, preventing election interference is clearly something that is both the best interest of the government and the people they serve. So, if there are some incursions on free speech rights when it comes to free and fair elections, they're justified by the compelling interest of the government:

This compelling interest undoubtedly includes making sure voters have accurate information about how, when, and where to vote. Prosecutions such as the one before this court are one of the few tools at the Government's disposal for doing so. Counter speech, a typical mode of countering false speech, is unlikely to be of much use in the context of tweets spread across the far reaches of the internet in the days and hours immediately preceding an election.

A lot of this is true. But this relies on a lot of the court's other conclusions, including its assumption Mackey knew he was committing a crime when he started trolling. And an arrest that didn't occur until 2020 hardly seems like a deterrent against future, similar acts by others. It doesn't appear any of Mackey's followers have been charged, despite this being called a criminal conspiracy.

This post provoked a very lively discussion between Techdirt readers, almost all of which disagreed with my assessment of this ruling. Several very good points were raised, enough that I have seriously rethought my take on the decision. I think the prosecution (which the DOJ admits is the first of its kind) does raise some First Amendment issues, as does the decision supporting it. But, thanks to Techdirt readers, I also think I may have overlooked the more serious implications of Mackey's disinformation campaign, which is the sort of thing that can become concerted voter suppression very easily if there are no judicial/criminal justice guardrails applied.

A land of contrasts as they say, only I'm inclined to be less sympathetic to Mackey's arguments after reading this excellent comment thread.

Wherever you come down on the issue, the end result is here. Mackey is going to jail, as Eugene Volokh notes at The Volokh Conspiracy, pointing to the DOJ's official press release:

Douglass Mackey, also known as Ricky Vaughn," was convicted today by a federal jury in Brooklyn of the charge of Conspiracy Against Rights stemming from his scheme to deprive individuals of their constitutional right to vote. The verdict followed a one-week trial before United States District Judge Ann M. Donnelly. When sentenced, Mackey faces a maximum of 10 years in prison.

Suppression is what the DOJ's attempting to prevent. That this went before a jury is a limited testament to the functionality of the criminal justice system, which rarely finds jurors essential to the process. It also notes in the release that Mackey and his followers made deliberate efforts to deceive voters by using Hillary Clinton's official campaign logo and font in their misleading social media posts encouraging voters to stay home and vote by phone.

I still have reservations about this whole thing, although those reservations are a bit more reserved after reading through the original article's discussion. What's not clear is when protected speech strays into election interference. A concerted campaign utilizing a candidate's trademarks and hashtags is enough to trigger prosecution. But what if people do what they always do around election day and start telling people the wrong day or date to vote? At what point does it cross the line from being trollish to being criminal? And if it does cross the line, will the DOJ handle these cases consistently?

I do think this was a deliberate attempt to trick people out of voting. And that is suppression, even if Mackey's army of 58,000+ followers only managed to result in 4,900 futile texts. It's depriving someone of their right, even if - in a nation of hundreds of millions - only a very small number of people fell for it. An extreme amount of caution needs to exercised in the future. This isn't a problem that's going to go away. And the government - all three branches - need to take care to address the issue without further diminishing the rights they swore to uphold.