We have all shared this unsettling premonition that the attack on free speech is not just coming from Big Tech with the threat of censorship, but from the government backed by criminal prosecution. We are watching the government arrest hundreds of people not just for violence but for trespassing and negligible crimes at the Capitol when many of them were let into the building by the police. We are seeing the billboards and technology being used to hunt people down, as the most violent Antifa rioters are never arrested. No, this crackdown is not being driven by a concern for security and a sense of justice.
Well, now it’s confirmed that the government itself is rapidly headed toward criminalizing the speech of Trump supporters. The government is treating Antifa’s violence like speech and our speech like violence. What starts with bad behavior by Trump supporters (while ignoring what the other side does) will not end there.
Yesterday, a bizarre headline from the Justice Department’s Office of Public affairs caught my attention and raised the ire of many conservatives. “Social Media Influencer Charged with Election Interference Stemming from Voter Disinformation Campaign,” read the headline of a press release from the DOJ’s Eastern District of New York. That seemed odd to me because I’ve never seen such a vague and intangible charge after years of sifting through daily press releases from U.S. attorneys about espionage, trade theft, and gang activity. As I read further, my worst suspicions were confirmed.
“A Florida man was arrested this morning on charges of conspiring with others in advance of the 2016 U.S. Presidential Election to use various social media platforms to disseminate misinformation designed to deprive individuals of their constitutional right to vote.”
Wow, that sounds interesting. So the DOJ is finally going after election fraud? Did this guy throw out ballots or engage in mail-in fraud like endless witnesses said in sworn affidavits and in testimony before legislatures? No, the DOJ is not interested in tangible fraud that involves an action; in fact, it is investigating any DOJ official who might have sought to investigate such fraud. It only prosecutes speech.
Douglass Mackey, aka Ricky Vaughn, 31, of West Palm Beach was taken into custody and charged with having “exploited a social media platform to infringe one the of most basic and sacred rights guaranteed by the Constitution: the right to vote,” according to Nicholas L. McQuaid, Acting Assistant Attorney General of the Justice Department’s Criminal Division.
Again, I was confused how someone can use their own speech to infringe upon the right of a voter and actually succeed in stealing a vote.
After several paragraphs of DOJ officials bloviating about constitutional rights to vote, they finally announced his crime.
As alleged in the complaint, between September 2016 and November 2016, in the lead up to the Nov. 8, 2016, U.S. Presidential Election, Mackey conspired with others to use social media platforms, including Twitter, to disseminate fraudulent messages designed to encourage supporters of one of the presidential candidates (the “Candidate”) to “vote” via text message or social media, a legally invalid method of voting.
Boy, is that a mouthful! This standard would basically rope in half the country. The other half of the country always believes everything the other side is putting out is false information that is extremely dangerous. We’d all be in jail.
How exactly did the person engage in fraud?
For example, on Nov. 1, 2016, Mackey allegedly tweeted an image that featured an African American woman standing in front of an “African Americans for [the Candidate]” sign. The image included the following text: “Avoid the Line. Vote from Home. Text ‘[Candidate’s first name]’ to 59925[.] Vote for [the Candidate] and be a part of history.” The fine print at the bottom of the image stated: “Must be 18 or older to vote. One vote per person. Must be a legal citizen of the United States. Voting by text not available in Guam, Puerto Rico, Alaska or Hawaii. Paid for by [Candidate] for President 2016.”
The tweet included the typed hashtags “#Go [Candidate]” and another slogan frequently used by the Candidate. On or about and before Election Day 2016, at least 4,900 unique telephone numbers texted “[Candidate’s first name]” or some derivative to the 59925 text number, which was used in multiple deceptive campaign images tweeted by the defendant and his co-conspirators.
Folks, this is very scary. No, not the alleged crime, but that the feds are going after such behavior while ignoring sworn allegations of mass fraud. While what is alleged appears to be mean and spiteful, at the end of the day, there is no way to actually steal a vote with this subterfuge. Not unless someone thought that, based on a random internet tweet, they could vote via text, and without verifying anything thereafter, would have sent their text and then stayed home. By this standard, every governor who violated election law and actually facilitated the casting of ballots not pursuant to law should be in jail.
There are some really distasteful ways people use their freedom of speech – sometimes in a serious way or sometimes in a joking way – but the First Amendment was not written to protect benign speech. To arrest only one side of the divide for social media memes at a time when officials are letting cities burn is very concerning. And it opens a very slippery slope for the government to prosecute people for saying anything that the government believes is harmful.
Is it that hard to envision an FBI agent knocking on your door and saying, “You just wrote information telling people masks don’t work and to stop wearing them. You are engaging in fraud and are an accessory to murder!”