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naraburns  nihil supernum  1yr ago (text post)   38046 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?

4900 is not in any way a paltry number. One state had a gap of 2700 votes between winner and loser. People are convicted all the time for voter fraud (which, of course, is a different thing than what mackey did) involving a few votes. Of course, 4900 unique numbers might not mean 4900 people whose votes were prevented, who knows.

They could've easily charged Douglass all the way back in 2016 if they wanted to. Why are they doing it now?

Just combine your trump explanation with 'collecting evidence, preparing a case, bureaucracy, and procedures takes a while'? I don't know, but that is a lot simpler than 'it's coordinated with trump's indictment'. It's not even aimed at trump.

To the merits of the conviction - where should the line between 'joke' and 'interfering with an election' be? It's arguable that, if you make a concerted effort to mislead voters and do mislead a large number of voters, even if it's a "joke" you still committed the crime. Similarly, if you 'falsely advertise' a product as a joke, that should be first-amendment protected - but if people tricked by the 'joke' try to buy the fake product, and you accept their payments without delivering, that should be illegal. I'd guess that (not-lawyer-squishy-opinion), on the balance, this should be legal, but it's more reasonable to criminalize it than most other kinds of satirical speech, as the govt has an interest in elections being run fairly. It isn't really outrageous, signaling a crackdown on right-wing dissidents, or anything like that.

Eugene Volokh wrote a detailed article about the case, before Mackey was found guilty. My read is - there are arguments both ways on whether restricting that speech is, or should be, permitted by the First Amendment, but the particular statute used isn't a good fit.

In First Amendment cases, the court has asked not only whether the defendant’s speech is theoretically punishable—it has asked whether the particular law is narrowly tailored to punishing it, and whether it clearly enough defines what is punished. (This is done under the “overbreadth,” “strict scrutiny,” “intermediate scrutiny,” and “vagueness” doctrines.) Section 241 may be adequate for punishing nonspeech conduct, whether violence or vandalism or tying up phone lines, or for speech that falls within a recognized First Amendment exception (such as perjury). But if the federal government wants to punish speech about elections, even deliberately deceptive speech, it ought to use something clearer and narrower.

In the Tobin case, there was an appeal of a different charge: Tobin had also been convicted under a telephone harassment statute, which banned repeated calls made “with intent to harass.” But the appellate court reversed that, and added: “Despite the unattractive conduct, this [telephone harassment] statute is not a close fit for what Tobin did. If the government thinks this a recurring problem, it better seek an amendment [to the statute].” Those words ring true for the Mackey prosecution as well.

Agree. 4900 is more than i would have guessed for a seemingly harmless twitter joke...that is more than enough to move the needle for swing states. Had someone did this but targeting trump voters and had trump lost, we'd be hearing to no end by the same guys on Twitter about how it's not a joke and how it's evidence of fraud, and so on. One way around this is to charge him to set legal precedent , but sentence him lightly. To add, I personally don't think he should have been charged and someone who fall for such a joke is too ill-informed to have a say, but I can see the rationale for charging him. The 1st amendment protects a lot, but I can see a line being drawn if it involves elections. Let's assume someone like Nayib Bukele had charged some people for making a similar joke that interfered with his election. Would the same people supporting him now be defending those people for making a joke on the grounds of the 1st amendment? The failure of people to apply their principles evenly/consistently is one of the problems I have with online-right.

That's BS - I have seen dozens of such jokes, from both sides, close to every election previously. And nobody ever on the Trump side complained about it as an evidence of fraud. While we are seeing here that the Biden side is not just complaining - but prosecuting a person for it. But still somehow it's Trump's fault, amazingly.

This wasn't just a single casual joke!

Excerpts from the complaint, which somehow blocks copying

[...] Within minutes, members of the Madman Group discussed ways to make the Deceptive Image more effective. One member of the group responded, "Don't post it yet though, a week or less before the election. I'm making a version myself." Co-Conspirator 4 responded, "make sure to use the latest color schemes they have.

Three minutes later, a participant in the Madman Group responded, "Dopey shitlibs will fall for it too."

Co-Conspirator 2 stated "here's what I worried about [I, people on[Candidate 2's] side thinking this is legit and they stay home. I'm plotting, will have something soon.» Another member responded, "[Co-Conspirator 2], what about if we say something about its too late b/c we didn't register for it [and] we'll have to do it next election or some shit." Co-Conspirator 2 responded, "Yep, I think so."

This does seem to show intent to actually influence voting, as opposed to just laughing. That said, 'actually influencing the vote' is pretty funny. And the sort of person who'd fall for such a dumb trick probably isn't someone whose political opinions, and thus vote, are of particular value anyway.

article with example images and some context

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