A trial with the potential to greatly alter modern online speech laws kicked off on Monday, with prosecutors accusing celebrity meme-maker Douglass Mackey of using memes in an attempt to steal votes from Hillary Clinton’s base during the 2016 election.
Memes, in general, are meant to be humorous internet images, but prosecutors hold that Mackey crossed the line when he posted one instructing people to vote by text message—and another depicting a black woman holding a campaign sign for Hilary Clinton—about a week before Election Day in the 2016 presidential election.
After the election cycle, the Department of Justice went after Mackey with a conspiracy charge, alleging that he conspired to deceive people with memes and with the intention to influence the 2016 election. Authorities arrested Mackey in January 2021—and a jury indicted him within two weeks of his arrest—for conspiring against people’s right to vote (18 U.S.C. §241), a charge that carries a maximum of 10 years in prison.
While the DOJ has prosecuted many other forms of election interference—based on violence, for example— Mackey’s case is likely a historical first where alleged falsehoods are said to be the form of interference, as Eugene Volokh, a professor at UCLA School of Law specializing in First Amendment Law, told The Epoch Times.
On Monday, Mackey’s trial commenced with Assistant U.S. Attorney Frank Turner Buford delivering opening statements for the prosecution, the government, and attorney Andrew Frisch for the defendant, Mackey. The government direct-examined several witnesses and presented evidence in favor of its case.
Can Memes Cross a Line?
According to the DOJ’s Monday statements, that meme was a “phony digital flyer” that was a part of Mackey and his peers’ conspiracy to “steal people’s right to vote in the 2016 presidential election.”“Avoid the line. Vote from home. Text Hillary to 59925,” reads a meme posted online by Mackey on Nov. 1, 2016, which Buford presented to the jury as a key piece of evidence on Monday. Buford noted that the typeface and font of the meme were intentionally made to match those of Hillary Clinton’s 2016 campaign pictures.
While false speech itself doesn’t constitute a crime, the prosecutor said, it becomes a crime if the speech is intended to deceive voters and devoid them of the right to vote by lying about election mechanisms.
Whether Mackey had that intention, however, largely depends on the nature of the memes, and that’s a factual question that needs to be answered by the trial, Volokh said.
“Would this be reasonably understood as actually a factual statement? Or would it be reasonably understood as a joke? That’s a question that comes up in a lot of contexts when people are being sued or prosecuted for allegedly lying,” Volokh said of the memes. “So that’s the second question that has to do with the facts of this case—and that’s one issue that the jury presumably will be asked to decide.”
The defense, on the other hand, characterized Mackey’s memes as apparent jokes that should be protected by the First Amendment as one of innumerable ideas expressed in the digital social media town square.
“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.”
In a more humorous segment, the defense introduced the concept of “[expletive] posting” to the jury, and said the memes were meant as such—jokes designed to go viral and whose goals were to garner the most attention, rather than to deceive.
A Preview of the Battle
Buford said the DOJ would present evidence during Mackey’s trial to show Mackey to be a conspiracy mastermind behind meme warfare dedicated to influencing the 2016 election, and not an innocent joker.This evidence will include public and private messages among Mackey and his alleged co-conspirators on Twitter, which include discussions about the meme’s content and the coordinated timing of sending these memes, Buford said on Monday.
Another piece of evidence that the prosecution will present is what it says would show that Mackey intended to conspire to “vaporize votes” by posting memes that “demoralize or confuse” the opposition party by depicting Clinton in a bad light. As an example of this, Buford said Mackey posted a meme while disguising himself as Hilary Clinton, saying that she would provoke a war and draft women to fight.
Buford added on Monday that the prosecution would bring a witness who owns the telecom company that owns the text code (59925) in Mackey’s meme, alleging at least 4,900 unique phone numbers texted that number to vote after Mackey posted the meme.
Other Relevant Questions of Law
According to Professor Volokh, other questions of law will have a bearing on the case in addition to whether the memes themselves are an intentional deception campaign.“Let’s assume it’s perfectly serious. It’s intended to deceive people, and the person knows it’s false. When it comes to this very narrow category of lies about the details of voting—the mechanics of voting—can those be outlawed?” Volokh asked.
“I’m inclined to say the answer is probably, ‘yes.’ But it’s certainly not open and shut,” the scholar said.
Even beyond this question, another assumption still needs to be examined, Volokh told The Epoch Times.
“Even if a narrow law banning these false statements of fact [about] the mechanics of election would be constitutional, this particular law, does it actually ban those statements?” Volokh said.
“But at the same time, the defense says, ‘no, in context, this law should be understood as banning only interference with elections, through threats or through violence,” Volokh said.
“To the extent that the government is saying the law bans these kinds of false statements, that would make the law unconstitutionally overbroad, because it'll then also be equally read to ban all sorts of lies and election campaigns, and that’s not permissible.”
The legal expert found himself more aligned with the defense’s argument on this question.
“I’m inclined to say that, in order to make this law constitutional—to read it in a constitutionally permissible way—it can’t be read broadly enough to cover Mackey’s speech,” Volokh said. “I think in context, in order to make the law constitutional, it has to be understood as banning just violence and threats of violence.
“But again, the courts disagree with me on that, and that may be an important legal issue that will come up on appeal. “
