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UPDATE 2: Douglass Mackey sentenced to seven months in federal prison, read more here.
Douglass Mackey is alleged to be one of the many anonymous Twitter users who made the 2016 election so different, so memorable, and so important.
Like other anonymous internet memesmiths (anons), Mackey had no external reason that anyone should care what he said. He held no office. He had no byline at an elite publication. He had no vast pool of wealth that conferred legitimacy, deserved or undeserved, on what he had to say.
Mackey’s notability, like that of Bronze Age Pervert or Libs of TikTok, came exclusively from what he had to say, and that people found it funny and compelling. Over the summer and fall of 2016, Mackey allegedly went by the nom-de-tweet Ricky Vaughn (after Charlie Sheen’s character in Major League) and collected tens of thousands of followers who found him funny and compelling. Mackey was not single-handedly responsible for getting Donald Trump elected. But the work he allegedly did along with dozens of others is what made Trump’s victory possible. An MIT analysis estimated that Ricky Vaughn was a bigger influence on the 2016 election than NBC News.
But for the regime, the specter of anonymous individuals making the system tremble was too much. And so, for more than two years, the regime has been battling to send Mackey to prison.
You might not know much about Mackey’s case. It’s far less notorious than the January 6 prosecutions, or the murder trial of Kyle Rittenhouse. But in terms of how much the speech matters for American liberty, it is as important as either of those — perhaps more so.
In January 2021, shortly after the January 6 incident inaugurated a national anti-MAGA crackdown, the Department of Justice charged Mackey with “conspiring … to deprive individuals of their constitutional right to vote.”
Mackey’s offense? Illegal memes.
Specifically, the DOJ claims that the above meme merits a prison sentence of up to ten years, for violation of 18 U.S. Code § 241. The law, which concerns “Conspiracy against rights,” is a subset of the Enforcement Act of 1871, better known as the Ku Klux Klan Act.
The DOJ’s argument is that, by posting the above memes on Twitter in 2016, and designing it to resemble a Hillary Clinton ad, Mackey deceived the public into casting invalid text message votes, as part of a conspiracy to deprive them of the right to vote.
To be clear, the federal government can’t show that this actually happened. But the government says that proving a dumb meme fooled a single person is not necessary to find one guilty of the dastardly crime of disinformation.
[Revolver encourages anyone able to donate to the case at MEMEDEFENSEFUND.com. You can also donate crypto or send cash or check by going to douglassmackey.com, or if you prefer GiveSendGo, go to givesendgo.com/douglassmackeycase.]
To drive home the absurdity of the charge, it’s worth quoting the relevant law in full:
If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or
If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—
They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.
Reading the law, it’s obvious how it was aimed at the Ku Klux Klan. It is plainly, and obviously, meant to criminalize physical violence, threats, or intimidation used to prevent people from exercising constitutional rights, such as the right to vote.
Now, the DOJ claims that the law’s scope includes possibly tricking someone with a meme on Twitter.
At the risk of being tedious, we will explain: memes promoting incorrect election dates are old hat. People have been making them online and in print since at least 2000, and who are we kidding, probably well before that. They’re either a humorous indication of one’s desire to win a race, or else a political in-joke — “Man, Democrats/Republicans are so stupid they’d probably believe someone telling them election day is Wednesday!”
And of course, it doesn’t matter if some people were too dumb to get the joke. As the D.C. Circuit Court of Appeals wrote in the 2013 case Farah v. Esquire:
But it is the nature of satire that not everyone “gets it” immediately. For example, when Daniel Defoe first published The Shortest Way with the Dissenters, an anonymous satirical pamphlet against religious persecution, it was initially welcomed by the church establishment Defoe sought to ridicule. See James Sutherland, English Satire 83–84 (1958). Similarly, Benjamin Franklin’s “Speech of Miss Polly Baker,” a fictitious news story mocking New England’s harsh treatment of unwed mothers, was widely republished in both England and the United States as actual news.
Is the joke a very good one? People can disagree. But it’s absolutely a joke that existed long before 2016, and until the Biden DOJ decided otherwise, it was never a crime.
This bears mentioning over and over again, if necessary: the law has never been used in this way before. This case is a drastic escalation in the use of “disinformation” as an excuse to target dissenting political voices. A regime that previously relied on deplatforming or doxing (both of which have already been used on Mackey) now makes use of outright felony prosecutions with the threat of decade-long prison sentences.
The case against Mackey is facially ridiculous. The charges, first brought two whole years ago, should have been immediately tossed out in court. Yet, incredibly, in mid-January, Mackey’s bid to have the case thrown out was rejected by Clinton-appointed district court judge Nicholas G. Garaufis.
Yet reading through Garaufis’s ruling rejecting the motion to dismiss does all the work necessary to show how repugnant and feeble the case is.
“This case is about conspiracy and injury, not speech,” writes Garaufis. Yet the government has produced no injured party, and there is no conduct that has occurred besides Mackey’s speech. Then, Garaufis proceeds to make one of the darkest, yet also most ridiculous comparisons imaginable:
The Government correctly argues that Defendant Mackey’s Deceptive Tweets are most accurately characterized as a vehicle or means for illegal conduct, and that the Statute-even as applied-is targeting that aspect of Mr. Mackey’s behavior, rather than a free-floating crime of speech. Treason is still treason if it is spoken aloud.
In a sequence straight out of a black comedy, Garaufis’s ruling describes what is plainly a freewheeling online groupchat as though it was a plot to overthrow the government.
Mr. Mackey and his co-conspirators are alleged to have participated in private direct message groups on Twitter called “Fed Free Hatechat,” the ‘War Room,” and “Infowars Madman,” to discuss “how best to influence the Election” and “to create, refine and share memes and hashtags that members of the group would subsequently post and distribute.” Members of the group messaged about “memes” and Tweets that would “suggest that certain voters were hiding their desire to vote for a Presidential candidate from one of the two main political parties,” through “psyops” intended to “make all these shitlibs think they’re [sic] friends are secretly voting for” Donald Trump. Other messages “relat[ed] plans to alter images of various celebrities in a manner that falsely suggested that the celebrities were supporting [Donald Trump’s] candidacy” and suggested that if the Democrats were to win the presidency, women would be drafted into the military, with the stated intent of “mak[ing] the shitlib woman vote waver in this election.”
Yes, the government is using the “Draft Our Daughters” meme as evidence to claim Mackey should go to prison.
The federal government has not produced a single person who failed to cast a ballot due to Mackey’s supposed perfidy. It hasn’t produced anyone who claims they almost failed to vote based on Mackey’s memes. All it can produce is evidence that people texted the number on the meme, a completely meaningless measurement when any number of people might have done so just to see what would happen.
But now, the claim is headed to trial, in the Eastern District of New York, a venue whose jury figures to be favorable to the prosecution. And in one of the most sinister events of this entire Kafkaesque process, Garaufis also initially sought to mandate that Mackey’s jury consist entirely of those fully up-to-date on their Covid vaccinations.
— Jack Posobiec ?? (@JackPosobiec) January 26, 2023
Only Joe Biden’s incidental announcement that the Covid emergency will be ending (in three months) spared Mackey from a jury deliberately rigged to convict him.
If the DOJ gets its way and wins a conviction in this case, it will obviously be a gross miscarriage of justice for Mackey. But it will also herald far more sweeping anti-speech powers for the federal government. “Disinformation,” a term with no legal definition, will suddenly become a ready tool in the arsenal of ambitious prosecutors who want to rise through the left’s ranks. And even if actual prosecutions remain infrequent, the chilling effect over the wider political ecosystem will be massive.
Mackey’s case isn’t getting the attention it ought to, for the usual reasons: not all of Mackey’s tweets were nice enough to be printed in National Review or aired on Fox News, so with the notable exception of Tucker Carlson and Andrew McCarthy, neither has been eager to cover his case. There is also the pathological ADD of American conservatism: What’s on TV needs to change a lot to keep their attention, and if it’s not on TV, it may as well not exist at all. Mackey’s case, for better or for worse, involves 2016 memes, has been dragging on for two years without trial, and involves the nuances of American speech law rather than something thrilling like gunning down two Antifa thugs.
But just like the Rittenhouse trial, or Alex Jones’s case last fall, Douglass Mackey’s persecution matters. It matters because it is the test run for what the regime wants to do to all of its enemies: Circumscribe the acceptable range of activities and opinions until dissent is impossible, and create a few standout examples to inspire fear. The Biden DOJ brought this case for a reason, and if it gets away with it this time, many cases like it will follow. The left’s favorite slur — “Disinformation!” — will soon become its favorite criminal charge as well.
If Mackey had merely firebombed a cop car during riots, he would enjoy Cadillac-tier legal representation fully financed by a constellation of progressive non-profits. But sadly, Mackey’s only crime is speech, and the right has lamentably failed to make sure that legal fees are irrelevant for his case. Revolver encourages anyone able to donate to the case at MEMEDEFENSEFUND.com. You can also donate crypto or send cash or check by going to douglassmackey.com, or if you prefer GiveSendGo, go to givesendgo.com/douglassmackeycase.