Are Douglass Mackey’s Memes Illegal?

In 2016, a Florida man named Douglass Mackey (using the online alias “Ricky Vaughn”) allegedly conspired to distribute a meme aimed at deceiving pro-Hillary voters.

Four years later, Mackey is now being prosecuted (as to this and as to other memes) for violating 18 U.S.C. § 241, a federal law that punishes 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”—namely, the right to vote. Lying to voters in a way that keeps them from voting, the theory goes, is a crime.

Is this sort of prosecution constitutional? After all, people often lie in political campaigns. Candidates do it, activists do it, political operatives do it. Can election lies simply be outlawed?

Surprisingly, the Supreme Court has never resolved the question. It hasn’t resolved the big-picture question: When can the government punish lies? It hasn’t resolved the medium-size question: Can the government punish lies in election campaigns? And it hasn’t resolved the particular question: Can the government punish lies about the mechanisms of voting, and in particular about how to vote?

1.

Let’s start with the big picture. Certain kinds of lies (let’s focus now on knowing lies, not inadvertent errors) can indeed be punished, including criminally.

The classic example is defamation: lies that injure reputation. Criminal libel prosecutions are rare, but they are constitutional—if the criminal libel statute is limited to knowing lies. Perjury can similarly be punished. So can fraud, even in otherwise constitutionally protected contexts (such as charitable solicitations). As the Supreme Court has held, though “under the First Amendment there is no such thing as a false idea,” “there is no constitutional value in false statements of fact.”

But the court has refused to say that all lies are constitutionally unprotected. In 2012, the court considered the case of Xavier Alvarez, a local government official in an LA suburb; he had lied about getting the Congressional Medal of Honor, and was prosecuted under the Stolen Valor Act, a statute that bans such lies about military decorations. Unconstitutional, six justices said. (I should disclose that I filed a friend-of-the-court brief arguing that most lies should be constitutionally unprotected; but that argument did not prevail.)

And yet the justices didn’t explain where to draw the line. There was broad agreement that “Laws restricting false statements about philosophy, religion, history, the social sciences, the arts, and other matters of public concern … would present a grave and unacceptable danger of suppressing truthful speech.” “The point is not that there is no such thing as truth or falsity in these areas or that the truth is always impossible to ascertain, but rather that it is perilous to permit the state to be the arbiter of truth.” (That’s from the dissent, but the concurrence endorsed it, and the plurality’s opinion was even more speech-protective than the others.)

Yet when it came to more specific lies, whether about one’s own medals or something else, there was no majority opinion. Four justices (Chief Justice Roberts and Justices Kennedy, Ginsburg, and Sotomayor) took a broadly speech-protective view. Two more justices (Justices Breyer and Kagan) concurred with an intermediate view. Three justices (Justices Alito, Scalia, and Thomas) dissented, reasoning that lies are generally unprotected. And that has been the court’s last word on the subject so far.

2.

Lower courts have considered the question more, including with regard to laws banning knowing lies in election campaigns. Do courts uphold such laws? I answer unequivocally: yes, and no. In 1985, an Ohio appellate court upheld the Ohio statute, and in 2000 the Michigan Supreme Court held that lies by candidates for judicial office could be punished (though the Michigan rule didn’t involve criminal punishment).

On the other hand, a 2007 Washington Supreme Court decision struck down that state’s election lies statute. And since Alvarez, federal and state appellate courts have struck down the Ohio, Minnesota, and Massachusetts statutes. All those cases focused on the specific details of those statutes; but it’s fair to say that those judges were highly skeptical of the government’s ability to fairly adjudicate such cases. To quote the Massachusetts case,

[Such a] statute may be manipulated easily into a tool for subverting its own justification, i.e., the fairness and freedom of the electoral process, through the chilling of core political speech. ... [T]he distinction between fact and opinion is not always obvious. ... Moreover, even in cases involving seemingly obvious statements of political fact, distinguishing between truth and falsity may prove exceedingly difficult. ...

Thus, in the election context, as elsewhere, it is apparent “that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which [the people’s] wishes safely can be carried out. That at any rate is the theory of our Constitution.”

3.

But what if a law focuses narrowly on one category of election lies—lies about the details of the voting process, which risk misleading voters not about the qualities of a candidate or the costs and benefits of a ballot measure, but about the who, where, when, and how of voting (e.g., whether one can vote by text)?

In 2018, the Supreme Court offhandedly remarked that “We do not doubt that the State may prohibit messages intended to mislead voters about voting requirements and procedures”—at least in the government-controlled space in voting locations. And while it takes much more to justify speech restrictions outside government property than it does to justify restrictions on government property, I expect that courts would likely uphold a narrow ban on lying about the rules of the voting process—though I know of no cases specifically dealing with such narrow bans.

For such lies, “the distinction between fact and opinion” is usually easy to draw. “[D]istinguishing between truth and falsity” would generally not “prove exceedingly difficult.” There’s no real concern about suppressing debate about “philosophy, religion, history, the social sciences, the arts, and other matters of public concern” or even just about a particular candidate or ballot measure.

There is a compelling interest in making sure that voters aren’t deceived into voting in a legally ineffective way, and thus throwing away their votes. The law would be narrowly focused on preventing such harm to the democratic process. And five of the justices in Alvarez (the dissenters and the two concurring justices) took the view that restrictions on lies should be easier to uphold than restrictions on other speech.

Now even such a narrow restriction would have some cost. Much humor, for instance, consists of knowingly false statements being said as satire or hyperbole. Such statements are usually obviously, ridiculously false, which is what makes them funny. One classic example is “Democrats vote Tuesday, Republicans vote Wednesday” (or vice versa); it’s sometimes offered as an example of deception, but my sense is that it’s usually a joke, precisely because readers know that a general election is one day for everyone, rather than different days for different parties. Many people may have viewed Mackey’s meme as a joke as well, though the government’s evidence suggests he was hoping to actually be taken seriously by some voters. (The prosecutors allege that a small portion of his audience may indeed have been taken in, but the question in conspiracy cases is whether the defendants sought to achieve the goal, not whether they actually achieved it.)

Courts have dealt with this “lie or satire?” question in other cases, often involving libel. Consider New Times, Inc. v. Isaacks, a 2004 Texas Supreme Court case. The backstory was that a 13-year-old had been arrested and kept jailed for five days on a “terroristic threats” charge, for writing a story about a school shooting—in response to a Halloween assignment from a teacher who had asked the children to write a scary story. The incident drew criticism of the judge and prosecutor who authorized this.

In response, a local alt-weekly published an article that described the arrest and detention of “diminutive six-year-old” Cindy Bradley, who was purportedly jailed for writing a book report about “cannibalism, fanaticism, and disorderly conduct” in Maurice Sendak’s classic children’s book Where the Wild Things Are. Adjacent to the article was a picture of a smiling child holding a stuffed animal and bearing the caption, “Do they make handcuffs this small? Be afraid of this little girl.”

The article ascribed these actions to the judge and prosecutor in the original story, and the allegations got still more ridiculous as the article went on (satirical articles are often structured this way): “Cindy was placed in ankle shackles ‘after [authorities] reviewed her disciplinary record, which included reprimands for spraying a boy with pineapple juice and sitting on her feet.’” The judge and the prosecutor sued for libel, and the trial court and intermediate appellate court allowed the case to go forward (even ordering the newspaper to pay the plaintiffs’ attorney costs for the appeal): “A genuine issue of material fact exists,” the appellate court reasoned, “as to whether a reasonable person could construe the asserted parody or satire as a statement of actual fact.” It took a further appeal to the Texas Supreme Court to get the case reversed, unanimously.

So: On one hand, the legal system did end up properly distinguishing a lie from a joke. On the other, it took years and doubtless a lot of money to get there, with four judges (the trial judge and three intermediate appellate judges) ruling one way and the nine Texas high court judges ruling the other. That’s a sobering reminder of the danger posed even by laws that ostensibly target falsehoods.

Of course, even “obvious” falsehoods that might be funny or at least harmless for most viewers could deceive a few—and that deception might be harmful, especially in a close election. But one can say the same about libels: The judge and the prosecutor in the New Times case (both elected officials themselves, by the way) might have been worried that some readers—some voters—wouldn’t get the joke, even if most would have.

Now we don’t let the satire tail wag the libel dog: We keep libel law, coupled with the rule that satirical material shouldn’t be treated as libelous, rather than jettisoning it altogether. Likewise, we might have a ban on lies about the mechanics of voting, and trust prosecutors, judges, and juries to sort the lies from the satire. Still, there would be some cost to free speech from such a prohibition, especially since something that’s a joke to 95% of the people may be taken seriously by 5%.

4.

Narrow and clearly defined statutes that prohibit lies about the mechanics of how to vote are likely constitutional. Some states have such statutes (e.g., Missouri’s ban on “Knowingly providing false information about election procedures for the purpose of preventing any person from going to the polls”), though even those might need to be tightened up a bit.

But, 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.

Nor can I find any precedent for such prosecutions under this statute. The closest analog, which the Justice Department writes about it in its Federal Prosecution of Election Offenses guide, is U.S. v. Tobin, where the government prosecuted a party official for “a scheme to jam telephone lines for ride-to-the-polls services offered by the opposing political party” and by the Manchester Professional Firefighters Association. “The object of the conspiracy was to impede certain voters from getting to the polls in order to influence what was perceived to have been a very close United States Senate contest.” A federal trial judge held that § 241 would cover such conduct. But Tobin was acquitted by the jury, so there was no opportunity for an appellate court to consider the legal question. (Under the Double Jeopardy Clause, the government can’t appeal acquittals.)

To my knowledge, no other court has since considered the issue. And the Tobin decision didn’t consider a First Amendment argument, since the government was prosecuting Tobin for his conduct (jamming the lines) rather than for speech. It’s thus not the strongest precedent for what the government is now doing in the Mackey case.

And to the extent it is a precedent, the breadth of the Mackey indictment is disquieting. For instance, urging the Manchester Professional Firefighters Association to shut down its get-out-the-vote effort (with no threats or incitement of violence, but just advocacy) would be advocacy protected by the First Amendment. But under the trial court’s reasoning—that § 241 bans conspiracies “with the specific intent to impede or prevent qualified persons from exercising the right to vote”—such advocacy would in fact be a crime. Likewise, picketing outside a party’s headquarters, urging party activists not to show up for the get-out-the-vote effort (perhaps arguing that the party’s candidate has recently been shown to be a crook or a racist), would be a crime, too.

What’s more, § 241 isn’t limited to protecting the right to vote; it applies to “injur[ing]” or “oppress[ing]” people “in the free exercise or enjoyment” of any constitutional right. Say that people try to prevent a public speech at a local university by urging university employees to cancel it. That too would be a conspiracy “with the specific intent to impede or prevent qualified persons from exercising” the First Amendment right to speak, or the right to listen (which the court has held is also protected by the First Amendment).

In First Amendment cases, the court has asked not only whether the defendant’s speech is theoretically punishable—it has asked whether the particular law is narrowly tailored to punishing it, and whether it clearly enough defines what is punished. (This is done under the “overbreadth,” “strict scrutiny,” “intermediate scrutiny,” and “vagueness” doctrines.) Section 241 may be adequate for punishing nonspeech conduct, whether violence or vandalism or tying up phone lines, or for speech that falls within a recognized First Amendment exception (such as perjury). But if the federal government wants to punish speech about elections, even deliberately deceptive speech, it ought to use something clearer and narrower.

In the Tobin case, there was an appeal of a different charge: Tobin had also been convicted under a telephone harassment statute, which banned repeated calls made “with intent to harass.” But the appellate court reversed that, and added: “Despite the unattractive conduct, this [telephone harassment] statute is not a close fit for what Tobin did. If the government thinks this a recurring problem, it better seek an amendment [to the statute].” Those words ring true for the Mackey prosecution as well.