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naraburns  nihil supernum  1yr ago (text post)   37991 thread views

Culture War Roundup for the week of March 27, 2023

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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.

But he was convicted of conspiracy, which does not require a completed crime, nor any harm or even, in re this particular statute, an overt act (though there clearly was one here). The jury instructions are here - see page 34 et seq. And see US v. Gonzalez, 906 F. 3d 784, 792 (9th Cir 2018) [" In order to convict Gonzalez and Ayala of violating § 241 based on the first object of the charged conspiracy, the government had to prove: (1) that two or more persons agreed to deprive Carrillo of his right to be free from the use of excessive force, and (2) that Gonzalez and Ayala knowingly joined the agreement and intended to deprive Carrillo of his right to be free from the use of excessive force."].

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