A MAGA Troll’s Memes Were Blatant Disinfo. But Were They a Crime?

On November 1, 2016, a week before the U.S. presidential election, self-professed MAGA troll and shitposter Douglass Mackey tweeted a meme that urged Hillary Clinton supporters to vote via text message instead of casting an actual ballot.

“Avoid the line. Vote from home,” read the meme’s text, which was superimposed over a photo of a Black woman holding a pro-Clinton sign. “Text ‘Hillary’ to 59925.” Mackey tweeted a similar meme a few hours later with Spanish text and a photo of a Hispanic woman, then he retweeted a third vote-by-text meme with a photo of Clinton herself.

There is no vote-by-text mechanism in the United States. These memes were brazen disinformation, hatched on 4chan boards and workshopped in private Twitter groups in which Mackey was a participant.

The Clinton campaign noticed the memes circulating and got the company that managed the phone number to set up an automatic response. CNN and other national media picked up the story, and Mackey — a.k.a. “Ricky Vaughn,” his former Twitter alias — was quickly banned from Twitter. The FBI opened an investigation and got a search warrant for Mackey’s multiple Twitter accounts.

Last year, after what the Justice Department called a “groundbreaking prosecution” for which another notorious MAGA troll was a key government witness, Mackey was convicted for violating a broad, Reconstruction-era federal statute and sentenced to seven months in prison. Later this week, on April 5, the U.S. Court of Appeals for the 2nd Circuit will consider whether Mackey’s conviction and sentence should stand.

Mackey’s case has sharply divided legal experts, including First Amendment and election law scholars. As another presidential election looms, the case highlights the inherent challenges of criminalizing and prosecuting disinformation.

“I’m not saying it’s an easy case,” said Sean Morales-Doyle, director of the Brennan Center for Justice’s Voting Rights Program, on how to reconcile the law Mackey was convicted under and the First Amendment, even beyond the current case. “We need to be careful when we’re applying criminal prohibitions to conduct that includes speech.”

“All that said, in the context of voting and elections,” Morales-Doyle said, “there’s something very heavy weighing on the other side of the scale: the constitutional right to vote.”

21st Century Memes Under 19th Century Law

Mackey is not the only MAGA troll dragged into court over disinformation. In summer 2020, Jacob Wohl and Jack Burkman, two far-right operatives, commissioned robocalls aimed at intimidating voters in predominantly Black neighborhoods. The robocalls, which went out to thousands of people across five states, falsely claimed that voting by mail reveals personal information to the cops, credit card companies, and the Centers for Disease Control and Prevention.

Last year, Wohl and Burkman pleaded guilty to telecommunications fraud in Ohio and were fined $5 million by the Federal Communications Commission. A federal court also ruled their robocalls violated the Voting Rights Act, among other federal and New York state provisions. Michigan prosecutors, meanwhile, have accused Wohl and Burkman of violating a Michigan law that prohibits efforts to “menace” voters, though the duo have appealed those charges.

In Mackey’s case, the federal government does not claim that his tweets were intimidating or threatening, just deceptive. And there is not a federal law that specifically prohibits lying about voting mechanisms or the electoral process, although Congress has considered similar proposals, including in a bill introduced last year.

Instead, in February 2021, more than four years after he sent the offending tweets, a federal grand jury indicted Mackey under the federal “conspiracy against rights” law, also known as Section 241.

The law traces back to 1870, when Congress passed a series of measures to criminalize efforts by the Ku Klux Klan and other white supremacists to stop Black Americans from voting. Section 241 makes it a crime to “conspire to injure, oppress, threaten, or intimidate any person” exercising any right protected by the U.S. Constitution or federal law, such as the bedrock right to vote.

In the intervening 150 years, courts have noted — sometimes with concern — that Section 241 was written quite broadly. Twenty-five years ago, a federal appeals court dubbed Section 241 one of the “poster children for a vagueness campaign.”

The law has been used to prosecute a range of conspiracies, including conspiracies to stuff ballot boxes or steal them outright and conspiracies to violently suppress voting. Former President Donald Trump has been indicted under Section 241 in relation to his far-flung campaign to reverse his November 2020 loss.

Mackey’s case is a novel application. Federal prosecutors accuse him of conspiring “to use Twitter to trick American citizens into thinking they could vote by text and stay at home on Election Day — thereby suppressing and injuring those citizens’ right to vote.”

Novelty is also at the heart of Mackey’s appeal: Does Section 241 cover plans to spread lies about the mechanics of federal elections? And would a reasonable person — not just a provocateur like Mackey — know lies like these are not just reprehensible or anti-social, but also illegal?

“The Government is trying to put Mackey in prison for tweeting two deceptive memes about how to vote, on the theory that any false speech that ‘hampers’ voting violates the Enforcement Act of 1870,” Mackey’s legal team wrote in a brief to the 2nd Circuit. “This is unprecedented, and lawless.”

In a brief supporting Mackey, Eugene Volokh, a law professor and prominent First Amendment scholar with a “libertarianish” bent, argues Congress could, if it wanted to, pass “narrow and clearly defined bans” on spreading similar election disinformation.