Federal Court Says Election Disinformation Isn’t Protected Speech

This is some bad looking precedent here. Everyone is right to be concerned about election disinformation, especially if that disinformation is intended to keep certain people from voting, but historically, it has been public officials facing criminal charges for voter suppression, rather than toxic Twitter trolls.

And Douglas Mackey, known as Ricky Vaughn" on Twitter, is definitely toxic. He and his followers created social media campaigns during the 2016 election that attempted to dupe people (Hillary Clinton voters, specifically) into casting their votes via text message or social media posts, hoping to steer them away from venues where votes could actually be cast.

For that, Mackey was arrested and charged by the DOJ. Even the DOJ admitted this prosecution was novel: the first time a person had been criminally charged with election interference for trolling people on social media. According to the DOJ, Mackey's efforts resulted in 4,900 unique phone numbers" attempting to vote by phone.

That's pretty disturbing, if true. But is it actually a criminal act? Misleading people during election season is the national pastime, one often enjoyed by political candidates. The federal court handling this case says that something often considered to be nothing more than noxious speech - something often successfully countered with more speech - is actually a criminal act. (h/t Paul Seamus Ryan)

The decision [PDF] goes through a lot of legal paperwork before arriving at this conclusion, starting out with the question of venue. The court says that because tweets can be received nearly anywhere, the venue is proper, even though Mackey resides in the Southern District of New York, rather than in the Eastern District, where the prosecution is being brought.

Defendant Mackey argues in his reply brief that because the Government has not presented past cases where criminal venue was established by Tweets, communications using Twitter cannot properly support a finding of venue. (Reply at 2.) So narrow a reading of the relevant case law would ignore the interpretative dynamism necessitated by the rapid technological change of our era. As more and more Americans choose to communicate via Twitter and other messaging platforms rather than by phone or email, the judiciary's understanding of how continuing crimes can be committed through electronic communications must keep pace and evolve. Although the cases discussed above did not deal directly with communications via Twitter, the Second Circuit's cases on phone calls, emails, text messages, faxes, chat room messages, and wire transfers as overt acts illustrate that the government can establish venue where such electronic communications were sent to or received by individuals in the venue district. Tweets are themselves electronic communications, so the Government may establish venue based on where Tweets are foreseeably received.

The court then handles Mackey's argument that he wasn't fairly warned" that attempting to deter voting by deception was a criminal act, something that violates his due process rights. It's an important question to raise, since it deals with criminal intent - something that's essential to criminal conspiracy charges. Here's where things start looking pretty dicey. The court cites plenty of precedent, but none appears to be on point. Almost all of it deals with politicians, election officials, and others directly involved in tallying votes engaging in criminal acts of voter suppression. There are also several cases where voters engaged in voter fraud by stuffing ballot boxes, forging ballots, and incorrectly filling out ballots on behalf of illiterate voters." Almost every case deals with direct interaction with the ballot system, rather than someone just telling voters something that wasn't true.

This is all fine, says the court. The law can be read to cover Mackey's acts, and that's how it's going to be read by this court.

Defendant Mackey is correct that many-but not all-of the cases above pertain to physical acts such as stuffing a ballot box or counting fraudulent votes. These cases did not, however, rely on the physicality of the acts to reach their holdings. Indeed, many of those cases raised a similar question to the one before the court: whether the statute was sufficiently broad in its scope to include the offense" charged. Foss v. United States., 266 F. 881, 882 (9th Cir. 1920). Not once has a federal court's response to that question been defined by the offense's corporeal tangibility. See e.g., Saylor, 322 U.S. at 388 (deciding that the statute included the charged offense based solely because there was a conspiracy directed at the personal right of the elector to cast his own vote and to have it honestly counted"). Nor does the statute or the case law offer any reason why a court would rely on that fact.

Maybe the court feels this way, but it's unclear whether Mackey truly thought he was engaging in a criminal act. Perhaps he might not have engaged in this expansive trolling effort if he thought it was actually a crime, rather than just a supremely shitty thing to do. Plenty of voter-related trolling occurred during the run-up to the election, with social media users deliberately misinforming others about voting dates, the legitimacy of absentee ballots, locations of ballot drop-off points, etc. But it appears Mackey (and some co-conspirators) are the only ones to be criminally charged for engaging in this heinous form of speech.

Mackey's First Amendment challenge to the application of the law in this way is also dismissed by the federal court. The court says that the First Amendment does protect political speech, but this speech wasn't political. It was deception intended to deter certain people from casting their votes.

The instant application of Section 241 does not attempt to regulate speech about the substance of what is on the ballot. Instead, it attempts to protect access to the ballot.

While it is possible that regulation of election misinformation or disinformation could, under other circumstances, be unconstitutional as impermissible proscriptions of political speech, this prosecution targets speech that harms the election process," rather than speech about a candidate or a candidate's views. [...] If Defendant Mackey had tweeted false statements about Hillary Clinton's policy positions, for instance, a different analysis would be necessary. But the issue at bar is whether Tweets telling one candidate's supporters that they can vote by text or Tweet, therefore making false statements about election procedures, such as the day the election will be held, the proper place to cast one's vote, or voting requirements" are proscribable utterances.

The courts sums things up by saying it's a good law (even though it's never been used this way before) and it's fine that the government is using it this way, even though it had other ways of countering Mackey's deceptive speech.

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.

Yes, it's true that counter speech during the days and hours immediately preceding an election" would be of limited utility. But the standard isn't what works best for the government. An arrest that took place more than four years after the alleged crime was committed isn't exactly a timely response either. And it's unlikely to have much of an effect on election disinformation unless the government is willing to treat everyone who engages in this form of speech the same way. Selective prosecution isn't an effective deterrent. It tends to make people more skeptical of the government and less likely to believe these criminal charges aren't politically motivated.

A jury may find the government's acts and this apparent incursion into protected speech too problematic to deliver a guilty verdict. But until it's in the jury's hands, certain election disinformation - if disseminated by certain people - is apparently a criminal offense. When something is this vague and selective, it's not a deterrent. It's a chilling effect, which is suppression of free speech. And this court, unfortunately, seems fine with that.