Meme Influencer Can Stay Out of Jail Pending Appeal of Guilty Verdict, Court Rules

A picture of Douglass Mackey, also known online as influencer "Ricky Vaughn," dated February 2023. Courtesy of Douglass Mackey

A New York federal appeals court on Monday ruled that a man who was found guilty of a conspiracy charge for posting allegedly fraudulent pictures about the Hillary Clinton campaign in the 2016 presidential election can delay his custody term as he appeals his case.

Douglass Mackey posted on the web what prosecutors allege were pictures intended to interfere with the 2016 presidential election in favor of then-candidate Donald Trump and was later convicted of a charge of conspiracy against the right to vote in March. After U.S. District Judge Ann M. Donnelly sentenced him to seven months of custody in August, Mr. Mackey appealed the case to the U.S. Court of Appeals for the Second Circuit.

Monday’s order, which granted Mr. Mackey’s motion for release pending appeal, put a pause on the date that Mr. Mackey must surrender himself to custody to allow him to file for appeal for his case. The ruling indicates that the appeals court found that Mr. Mackey’s case presents “substantial” issues of law that, if resolved in Mr. Mackey’s favor, would result in a reversal of the trial court’s decision, a retrial, or an amended term of imprisonment.

Mr. Mackey celebrated the ruling as a step toward his vindication.

“I am gratified by today’s ruling and look forward to the Second Circuit’s resolution of the important questions presented by my appeal,” Mr. Mackey told The Epoch Times in a statement on Monday.

A spokesperson for the U.S. Attorney’s Office for the Eastern District of New York, which prosecuted Mr. Mackey’s case, declined to comment in response to a press inquiry from The Epoch Times.

Around the time of his trial in the U.S. Eastern District of New York, Mr. Mackey’s case made national headlines as conservative commentators, including then-Fox News host Tucker Carlson, alleged that the Department of Justice (DOJ) was targeting the online influencer because he was a prominent supporter of President Trump. Meanwhile, the prosecutors in this case have maintained that they charged Mr. Mackey because he “weaponized disinformation in a dangerous scheme to stop targeted groups, including black and brown people and women, from participating in our democracy.”

Andrew Frisch, an attorney for Mr. Mackey, told The Epoch Times earlier this year that issues that would come up on appeal include First Amendment challenges, the government’s alleged suppression of exculpatory information, or potential defects in the prosecutors’ legal case related to jurisdiction.

‘Ricky Vaugh’

Mr. 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.

A study at the Massachusetts Institute of Technology ranked Mr. Mackey at 107th in terms of his influence on the election—higher than NBC News (114th) and Stephen Colbert (119th)—according to a 2021 statement by the Department of Justice.

Mr. Mackey was indicted in early 2021 and went on trial earlier this year 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; it instructed people to vote by text during the 2016 presidential election. Prosecutors presented it in the trial in March as evidence that Mr. Mackey, by posting the meme, unlawfully conspired to influence the 2016 election and take votes away from Ms. Clinton.

Prosecutors also showed one of Mr. Mackey’s Twitter posts, which suggested limiting “black turnout,” a statement that they said supports the charge that Mr. Mackey intended to conspire to interfere with the election.

But Mr. Frisch said at the time that Mr. Mackey’s memes and online posts were obvious jokes and can’t be taken as a serious attempt at conspiring against the opposition to Mr. 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 in his opening statements, suggesting that Mr. 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,” Mr. Frisch said, quoting a message penned by Mr. Mackey after his memes went viral online to indicate that he did not intend to conspire to influence the election.

Joke or Conspiracy?

Although the Justice Department has prosecuted many other forms of election interference—such as violence, for example—Mackey’s case is a historic first in that alleged falsehoods are being argued as a form of election interference, Eugene Volokh, a professor at UCLA School of Law specializing in First Amendment Law, told The Epoch Times in an interview earlier in this year.

Mr. 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 Mr. 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.

That was indeed one of the defense arguments advanced in Mr. Mackey’s motion in November.

“The Supreme Court has made crystal clear that the First Amendment protects false speech on matters of public concern. Indeed, all nine Justices agreed on this point in United States v. Alvarez,” the lawyers wrote. “Courts have since repeatedly struck down laws proscribing false speech about candidates.”

Mr. Volokh added that the objective nature of Mr. Mackey’s posts might also be disputed on appeal.

“Is 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.”

Timothy Zick, a professor at William and Mary Law School who specializes in First Amendment issues, diverged from Mr. Volokh, and argued that while Mr. Mackey’s speech itself wasn’t illegal, it could be construed as proof that he was conspiring to do something illegal.

“In Mackey’s case, it wasn’t just that he was lying or spreading memes about the election, but that he was lying in a manner intended to interfere with the rights of others to vote (spreading disinformation about invalid ways to vote),” Mr. Zick said.

“The theory of the case is that the defendant engaged in actions that facilitated a crime; the fact that some of those actions were speech does not implicate the First Amendment,” he added.