United States v. Douglass Mackey, argued before the United States Court of Appeals for the Second Circuit on April 5, 2024.

Panel: Debra Ann Livingston, Chief Judge, and Judges Reena Raggi and Beth Robinson.

Most of this argument does not address the First Amendment issues present in this case, but those issues do get discussed and could impact the ruling.

From the Opening Brief of Defendant-Appellant Douglass Mackey:

For years, Congress has debated, as a matter of policy, whether to criminalize the spread of political or electoral misinformation. And scholars have debated, as a matter of constitutional law, whether such a prohibition would withstand scrutiny under the First Amendment. Those are hard questions. This case asks whether Congress already criminalized this conduct (and much more) 150 years ago….

The statute at issue, 18 U.S.C. § 241, forbids conspiracies “to injure, oppress, threaten, or intimidate” anyone in the “free exercise or enjoyment” of any federal right. Part of the Enforcement Act of 1870, that statute has always been understood in the voting context to prohibit coercion (like assaulting or threatening voters) and ballot-box fraud (like shredding or stuffing ballots). Until this case, it was never deployed against mere deceptive speech, even though misinformation has been endemic in our politics since the Founding. Reading § 241 to sweep in speech that deceives voters would, atop many other problems, render it grotesquely overbroad under the First Amendment—exactly how the Supreme Court recently cautioned not to construe criminal statutes….

Mackey was convicted of one count under [18 U.S.C.] § 241 for posting on Twitter, in the days preceding the 2016 presidential election, two "meme" images falsely suggesting that supporters of Hillary Clinton could vote by text message. Mackey testified that he posted the memes to garner media attention, and there is no evidence that anyone failed to cast a proper vote because of his tweets. But a deadlocked jury eventually convicted, and now—for the first time in U.S. history—a citizen has been sentenced to prison for spreading political misinformation.

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STATEMENT OF ISSUES

1. Whether a private citizen commits a “clearly established” violation of 18 U.S.C. § 241 by spreading misinformation about how to vote.


2. Whether criminal venue for a conspiracy offense can be premised solely on the travel of “internet data” across a district’s waters or airspace.


3. Whether the evidence was sufficient to allow a jury to find the existence of a criminal conspiracy beyond a reasonable doubt.

Resources:

• Second Circuit court calendar


• Opening Brief of Defendant-Appellant Douglass Mackey


• Brief for the United States


• Reply Brief of Defendant-Appellant Douglass Mackey
  

The Institute for Free Speech promotes and defends the political speech rights to freely speak, assemble, publish, and petition the government guaranteed by the First Amendment. Learn more on our website: www.ifs.org