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naraburns  nihil supernum  1yr ago (text post)   37952 thread views

Culture War Roundup for the week of March 27, 2023

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Remember how back in 2016, there was a funny meme going around about how you could text to vote for Hillary? A man named Douglass Mackey was behind that, who has been found guilty of election interference by a jury in New York. The argument goes that this effectively deleted a bunch of votes that should have gone to Clinton. Okay, so how many?

Leading up to Election Day, at least 4,900 unique telephone numbers texted “Hillary” or something similar to the 59925 text number, the U.S. attorney’s office said.

...I'm not an expert on the 2020 allegations of election interference, but come on now, I'm pretty sure those allegations were more than just thousands of votes. And they were dismissed on account of not likely having affected the election. Regardless, the meme was clearly a joke; that 4,900 number seems absolutely paltry and criminally charging him is making a mountain out of an anthill.

More importantly, it's not hard to interpret this in the light of Trump's recent indictment for a matter that also transpired in 2016. Now, I can understand the argument that the reason they didn't try to charge him then was because he was the president, and it would be pretty hard to try to bring charges against the president while he's in office, therefore they waited until he was out. Or, they didn't know that he paid off the porn star until recently. But this? Douglass's tweet was very public and they could've easily charged him all the way back in 2016 if they wanted to. Why are they doing it now?

Some previous discussion here more contemporaneous to the original indictment.

The court's first amendment analysis at the motion to dismiss phase is here, but not very compelling. The denial of motion to dismiss summarizes it in courtlistener as :

"18 U.S.C. § 241 as applied in the Indictment does not, as a matter of law, violate the First Amendment because although the case involves false utterances, it is at its core, about conspiracy and injury, not speech. To the extent that the case does implicate the First Amendment, it is constitutional under the standard for false utterances set forth by the Supreme Court in United States v. Alvarez . 132 S. Ct. 2537 (2012). Although Defendant Mackey contends that the false utterances are protected as satirical speech, that is an issue of fact for the jury."

There's a few specific comparisons, but they're pretty limited to largely slapping the fraud exception onto things.

And the DoJ's comparable case from an earlier motion is almost universally non-speech matters:

It is beyond question that the right to vote may be injured by non-threatening means. See e.g., United States v. Saylor, 322 U.S. 385 (1944) (ballot stuffing); United States v. Classic, 313 U.S. 299 (1941) (manipulating ballots and false certification); United States v. Mosley, 238 U.S. 383 (1915) (omitting ballots); United States v. Haynes, 1992 WL 296782 (6th Cir. 1992) (unpublished) (withholding ballots); United States v. Stone, 188 F. 836 (D. Md. 1911) (confusing ballots)...

... For example, in Anderson, the Supreme Court affirmed a Section 241 conviction because the defendant’s casting of fictitious ballots “injure[d] the right of all voters in a federal election to express their choice of a candidate and to have their expressions of choice given full value and effect.” 417 U.S. at 226; see also United States v. Weston, 417 F.2d 181, 183 (4th Cir. 1969) (“[I]t has been established in this circuit that the procurement of absentee ballots in violation of state election laws is indictable under 241.”) ...

... Consistent with the Supreme Court’s holding in Anderson, courts have long held that Section 241 prohibits deceptive or misleading behavior intended to deprive voters of their constitutional right to vote. In Stone, the court found that a conspiracy to print misleading or confusing ballots that made it easier for a person of limited literacy to vote for a Democrat than a Republican violated a predecessor of Section 241. 188 F. at 839-40.

or involve professional speech that's been long-excluded in very specific contexts:

Indeed, deception that injures other constitutional rights has also been found to violate Section 241. For example, courts have approved the use of Sections 241 and 242 to prosecute police officers who violate the Fourth Amendment by making false statements in search warrant affidavits, conduct that, like the defendant’s, includes misleading words. See United States v. Melendez, 2004 WL 162937 (E.D. Mich. Jan. 20, 2004) (denying motion to dismiss in Section 241 case). Melendez and a Sixth Circuit case, United States v. Bradfield, 2000 WL 1033022 (6th Cir. July 18, 2000), involve, among other things, “falsified police reports” that injured the right under the Fourth Amendment to be free from unreasonable searches. Melendez, 2004 WL 162937, at *8. The Melendez court held that, “[b]ased on these cases, the conduct alleged in the indictment is unlawful according to pre-existing law and satisfies the fair warning concern of Lanier,” and it denied the defendants’ motion to dismiss. Id., (citing United States v. Lanier, 520 U.S. 259 (1997))

It'd be funny if this was the case that got SCOTUS to categorically disfavor any untrue speech, given the various changes to the bench, but it's more likely Mackey just has it disappear in a bunch of inventive decisions by state courts of appeal. As back in 2021, I can't see any way to merge this with existing jurisprudence -- 18 USC 241 is just far too ludicrously vague and broad, even if a law specifically about election-specific lies might be acceptable -- but I dunno how much that matters if no one's going to make this a cause celebre.

Wasn't the whole thing in the Larry Flint defamation case that the speech he was accused of was blatantly untrue to the point of being ridiculous?

In any case, this seems to be building grounds for prosecuting people for "misinformation" - which, as we know, is anything the government doesn't want to be said. If the government can prosecute any speech it declares false, and the only barrier is finding a jury with correct political inclinations, then the 1st amendment provides no protection about government prosecution anymore.

there is concrete evidence that a large number of people were likely deceived and it seems extremely likely at least some of them would have actually voted but for the conduct undertaken.

The government could not find a single witness to testify this at trial. Nobody was harmed.

Something else I just thought about. We know about dozens of people who knowingly distributed false information connected to elections - namely, the lie that Biden's laptop has been a foreign intelligence fake. We know that it significantly influenced the elections. We know there wasn't not only a single conviction but even a single attempt to open investigation into the matter. I think this should bury the idea that anybody is interested in prosecuting "election interference" that is committed by lying. Not that I would call for it - on the contrary, such a prosecution would be as big a spit in the face of the First Amendment as this one is, but it doesn't happen. Which clearly establishes the zeal for truth, even misguided, is not why this prosecution happened. What was the real motive I leave as the exercise for the reader.

No, that would be more of something like - statements of fact / material statements relating to a political candidate or issue, which would receive broad First Amendment protection, as restricting that gives the govt/courts a way to directly censor some political positions. That's clearly different than issues solely related to election procedure like 'where and how to vote'.

I think it's important to distinguish lies that attempt to influence voters from lies that attempt to inhibit voters

Sure. If you blow up a polling station, or ruin the road leading to one, or sabotage people's cars so they can't come to the election - or all your voting machines have mysterious malfunction all over the district and voters can't vote for many hours - there could be grounds for prosecution. At least if Democrats don't win there could be. But just putting a meme (clearly a ridiculous one) out there on the internet doesn't do any of that.

The case here was about an attempt to prevent people from voting by deceiving them into believing they had successfully voted when they had not.

That needs to be proven, and it wasn't.

The right you have as a citizen is to cast your ballot. Interfering with that right

Nobody interfered with that right. The assumption that some idiot didn't vote - which is not proven even in a single case! - is not interfering with the right, they very well could vote if they wanted to. If I convince you not to go to vote, because it's useless and the system is rigged - would I be convicted for "interfering with the rights"? After all, as we all know, "the system is rigged" is a lie, or at least the government knows that, which is enough - and here you go. Then if I try to convince people that they shouldn't vote for a certain candidate who is running unopposed, because he's a piece of shit - that also would be interfering with elections. Then there's almost no space left between that and jailing me for advocating any electoral position - after all, if I convince you to vote certain way, I also convinced you not to vote some other way, and we already agreed convincing you not to vote is a crime.

But I think it is meaningfully different when the lie is specifically designed to prevent or inhibit people from voting at all.

Spiritually worse, because they miss out on the precious "I voted" sticker? Or quantitatively half as bad, because the margin of victory changes by 2 for everyone tricked about a candidate but only by 1 for everyone tricked about a polling rule?

I'm all for limiting fraud claims to polling rule deceptions, both because that gives a bright line to limit abusive prosecution and because there's way less room in those cases for plausible deniability by the deceitful, but that doesn't mean the deceitful in other cases should be proud of figuring out how to promote a falsehood with twice the effectivity and none of the criminal liability.

If I copy the exact logos and formatting of my county board of elections and mail out postcards to registered Republicans telling them their polling place is moved, should that be a crime?

It'd likely be several crimes - using official insignia without permission, probably some kind of trademark violation, likely mail fraud, etc. The content of the envelope wouldn't really add much. None of this happened in this case. This is like somebody being prosecuted for peacefully protesting against a politician and you'd say "there should be a line somewhere - if he murdered him, dismembered the body, liquified it in acid, and set his house on fire - that should be a crime, right?" Yes, it should be. Nothing like that happened though.

In this case, there is concrete evidence that a large number of people were likely deceived

No there isn't. There's evidence they contacted the number. That's not proving any crime, and definitely not the one that was insinuated. It used to be that the crimes have to be proved. Not "well, he did something that we could imply that might be connected to something else", but the actual deed that is criminal.There was no proof for that. Even if there was, it'd be very questionable it is a crime - at least there should be a proof of criminal intent, if I just tell you "you know they cancelled elections?" and you believe it, it's not a crime. But they didn't do even the minimal thing. Because they didn't need to - finding a friendly jury which will convict anybody who is politically opposed to them is, apparently, much easier.

it seems extremely likely at least some of them would have actually voted but for the conduct undertaken.

You saying "would have" as if it were established they didn't. There's no single case where it was proven any of those people din't vote the normal way. You just assumed that - because it couldn't be The Powers screwed up that badly, could it? Yes, it could.

I genuinely don't know if enough evidence was presented to reach the threshold of actually causing a large harm to identifiable specific people

No, there wasn't, and they didn't even try that hard to do it. Probably because they counted on people assuming what they had is enough - and indeed, as we see, it was. Don't complain when you get a friendly local policeman show up at your door for a joke on twitter - after all, somebody could take it seriously - you see, 3 people liked it! - and that could mislead him into voting for a wrong person (not Democrat), and that's election interference. Hope you like them bananas.

OK so trademark infringement and wire fraud are present here, if they were present in my example, no?

That'd require using the actual official insignia, and as far as I know, it didn't happen.

Do you have the trial transcripts or any reporting from the courtroom?

No, but I have reporting that clearly indicates there was no proof of any case of not voting as a result of that and the prosecution relied on messages to the number alone. Of course, as we all know, reporting can be false - and if you provide reliable reporting to the contrary, I will re-evaluate my opinion. So far it didn't happen.

There is a brief discussion of some of the evidence that was presented here, but the source is one-sided so it does not include any contrary evidence.

It appears that the defendant testified, so it is always possible that the jury thought he was lying.

I'm curious what ground you see for an appeal.

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