A man who posted memes about the Hillary Clinton campaign during the 2016 presidential election has been found guilty of one charge of conspiring against the right to vote.
“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,” reads a March 31 statement from a federal court from the U.S. Eastern District of New York.
Mackey, who will be sentenced on Aug. 16, faces a maximum of 10 years in prison.
Members of the jury reached the unanimous verdict after a little less than a week of deliberation starting on March 27 after a weeklong period of testimony.
Mackey’s online persona, “Ricky Vaughn”—a reference to the sports comedy film “Major League”—had an online following of more than 50,000 that frequently amplified his pro-Republican voice during the 2016 elections.
Mackey was on trial for a charge of allegedly using memes—or generally satirical online images—to conspire against people’s right to vote. One such meme depicted an African American woman standing in front of an “African Americans for Hillary” sign. The meme instructed people to vote by text during the 2016 presidential election.
Conspiracy or Satire?
The DOJ, based on that meme and records of online discussions between Mackey and his peers, charged Mackey with conspiring against the right to vote.Authorities arrested Mackey in January 2021 on that allegation, and a grand jury indicted him within two weeks of his arrest.
According to the prosecutors’ evidence presented in court, Mackey’s Twitter posts included one that suggested limiting “black turnout,” a statement that prosecutors said supports the charge that Mackey intended to conspire to interfere with the election. On the witness stand, Mackey described it as an “exaggeration.”
But according to Mackey’s defense attorney, Andrew Frisch, that meme and Mackey’s Twitter posts were obvious jokes and can’t be taken as a serious attempt at conspiring against the opposition to Mackey’s preferred political party.
“Why would someone share a meme that you would vote for POTUS ... without disclosing your name ... or proving that you are of voting age?” asked Frisch rhetorically, mere moments after the prosecution delivered their opening statements. Frisch said that Mackey’s memes would be satirical in the eyes of a reasonable person.
“That feeling when you haphazardly post a meme and it winds up on cable television,” Frisch quoted a message that Mackey sent to his peers, emphasizing the word “haphazardly.”
Although a material injury—in this case, people’s right to vote being taken away—isn’t required to establish the conspiracy charge, the government stated during the trial that people’s votes were “vaporized” by Mackey’s “digital flyers.”
“On or about and before Election Day 2016, at least 4,900 unique telephone numbers texted ‘Hillary’ or some derivative to the 59925 text number, which had been used in multiple deceptive campaign images tweeted by Mackey and his co-conspirators,” reads the DOJ’s March 31 statement.
Plans to Appeal
During the trial, testimony presented by the prosecutors showed that members of the Clinton campaign reported Mackey’s memes to upper-level campaign managers during the 2016 election cycle, but the managers dismissed their concerns. Prosecutors, when confronted by Frisch about this evidence, didn’t dispute the factual validity of this evidence but noted the Clinton campaign personnel’s evidence should not be considered as evidence for or against the conspiracy charge.Frisch, on the other hand, said during the trial that this evidence shows that the government withheld exculpatory evidence, citing Brady v. Maryland, a 1963 case in which the Supreme Court held that prosecutors must make available exculpatory evidence to defense counsel. Frisch said that the government’s withholding of evidence irreparably damaged his opening statements at trial and requested that the court declare a mistrial.
The court declined Frisch’s request, with the judge commenting that the court should not declare a mistrial when less drastic measures are available, including re-examining the witnesses on the evidence at issue.
“This case presents an unusual array of compelling appellate issues,” Frisch told The Epoch Times in a statement. “The appellate court will have its choice of which issue on which to vacate the conviction. It may choose to do so on first amendment grounds, or on the government’s suppression of exculpatory information, or on the insufficiency of evidence of venue, among other issues.
Relevant Questions
Volokh outlined three legal contentions that may come up on appeal, the appeals court’s ruling on which, he said, may set precedents for online speech.“One possible argument is that the First Amendment just gives you the right to lie about elections and about how you can vote in elections,” he said in an interview with The Epoch Times on March 31. “You can imagine that the First Amendment generally protects even lies about the government. Not about particular people—that will be defamation.
“At the same time, there’s some reason to think that if you want to lie about ... where the election is going to be held, or when it’s going to be held, or indeed how to vote—lies about the mechanics of voting, maybe that could be constitutionally restricted.”
A second question that will arise on appeal, according to Volokh, is whether the federal statute regulating conspiracy against rights extends to statements about election mechanisms beyond the statute’s current interpretation, which bans election interference through violence, physical obstruction, or threats.
“Then it might end up being too broad,” the professor said. “It might end up covering interference by just making false allegations about what a ballot measure will do, which may, in fact, make it too broad—too much of a restriction on speech about campaigns.
“The last thing that’s going to come up ... is, in context, was this a lie? Or is this a joke?” He said. “I think a lot of people look at the poster and say, ‘Hahaha, this is obviously kind of just a joke,’ in the theory that who would be stupid enough to believe this? Because, of course, everybody knows that you can’t vote by text. So I take it that’s going to be part of the argument.”
James Lawrence, attorney for Mackey’s legal advocacy group, the Douglass Mackey Defense Fund, told The Epoch Times that the government is using an obscure law to prosecute the case, which may have a chilling effect on Americans’ freedom of speech.
“This is a law that was passed in the aftermath of the Civil War, designed to protect the rights of newly freed slaves in the post-civil war South to vote,” Lawrence told The Epoch Times in an interview earlier in March.
“The First Amendment right of all Americans are potentially implicated because, depending on the administration in power, the precedent can be used to chill or undermine the Constitutional rights of anyone, if they have a political view that differs from those that are in power.”
The prosecution notably concerns the ability of Americans to use satire, which has been used throughout history to critique power, he said.
“In this case, power is using a very old statute in an attempt to chill satire. So it matters.”
