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Last month, Revolver profiled the Biden Administration’s persecution of former Twitter anon Doug Mackey, who was a famous pro-Trump voice back in 2016 under the moniker of Ricky Vaughn.
For those whose memory is foggy, a quick review: In the late stages of the 2016 race, Mackey posted several memes, designed to resemble Hillary Clinton campaign images, claiming that supporters could vote by simply texting a phone number.
The memes were a Twitter-generation version of the common joke about telling one’s political opponents to turn out for the election next Wednesday. But, in an unprecedented move, the Biden Administration says Mackey violated the Ku Klux Klan Act by systematically acting to strip Americans of their civil rights. The KKK Act was passed to prevent literal assaults and terrorism that prevented black Americans from voting, but now the DOJ’s prosecutors say it applies to satirical online speech — they say Mackey broke the law, even though they can’t produce a single person who failed to vote due to Mackey’s stunt.
All of that is bad enough, but newly-unsealed documents released on Wednesday reveal new, sinister depths to the DOJ’s agenda.
Last fall, we warned about a new tool in the arsenal of weapons used by the regime to justify censorship and rolling back the basic rights of Americans. With this new tool, corrupt journalists like Taylor Lorenz can dox, harass, and lie about anyone they want and enjoy total immunity from criticism. Why? Well, if you dare to criticize a journalist like Lorenz, someone, somewhere, might become outraged and decide to commit an act of violence. With this remarkable censorship tool, the media’s attack dog journalists are magically absolved from any criticism because some nut job, somewhere, maybe, at sometime, might act violently upon this criticism.
The tool goes by the name “stochastic terrorism.”
Basically, “stochastic terrorism” is the idea that, when somebody on the right criticizes somebody, they aren’t really just making a political argument. Instead, they are trying to “stoke hatred” in the expectation that some random third party will be “radicalized” and then commit political violence on their behalf.
[T]he concept perfectly flows from being a personal attack to being a legal one. The implicit claim behind every complaint about stochastic terror is that dissident speech isn’t really speech, and therefore it doesn’t really deserve protection, because conservatives, or anyone liberals don’t like, harbor a hidden inner desire to inspire violent attacks. Any complaint about the liberals or, more importantly, the Regime, in any venue, can now be dressed up as “violent” speech deserving no constitutional protection.
Back in October, “stochastic terrorism” was just a concept for the media, the blogosphere, and the Twitterati, and it was only a weapon for curbing speech.
But everything moves faster in the digital age. Just five months later, the Biden Department of Justice is using the logic of “stochastic terrorism” to justify stripping core constitutional due process rights from dissident American voices.
In its latest filings, the DOJ reveals that one of the group chats it is currently using as evidence against Mackey contained a person who is now working with the FBI as a federal informant. According to the government, the “Confidential Witness” (or CW) was a pro-Trump, “alt right” leader who pleaded guilty to the same conspiracy to deprive civil rights charges that Mackey faces, and is now collaborating with the government.
In its filings, the government declines to say what CW’s current role with the government is, except that he is “presently engaged in proactive investigations, working with the Federal Bureau of Investigation (“FBI”), and may engage in additional investigations in the future.” Based on that statement, the government is asking that CW’s identity be kept secret, and that Mackey’s defense team be barred from asking any questions about CW’s current work.
This is a much bolder request than it might seem to the legally uninitiated. The Sixth Amendment of the Bill of Rights guarantees the right of any criminal defendant to “be confronted with the witnesses against him.” Like most constitutional rights, this law is not absolute, but limitations to it have historically been very limited. Courts have long disallowed anonymous witnesses due to the Sixth Amendment, except in extreme circumstances involving violent, organized criminal organizations with the capacity to retaliate against witnesses and their families. And even then, courts have restricted the right to testify anonymously. For instance, in 2014, the U.S. 10th Circuit said this, about the possible danger of retaliation from the ruthless Salvadoran street gang MS-13.
“…a generalized statement about danger — such as anyone who testifies against one of [MS 13’s] members faces danger from [MS-13] — would be insufficient to show that a threat against a witness was actual and not a result of conjecture.” [United States v. Gutierrez de Lopez, 761 F.3d 1123, 1140 (10th Cir. 2014)]
But now, in the Mackey case, the Biden DOJ asserts that its witness’s identity must be hidden, because if not, he might face, wait for it… harassment on the Internet!
CW through the CW’s internet moniker(s) occupied a prominent position within the online, alt-right community. In that capacity, the CW participated in, among other things, the online harassment of individuals with whom the CW maintained political disagreements, including by encouraging the CW’s followers on Twitter and other social media to amplify the harassment. In this case, the government anticipates that the CW will provide inculpatory evidence against the defendant and other individuals who, like the CW, had engaged in such harassing behavior. As such, the government anticipates that, if the CW’s true identity were to become known, then those with whom the CW associated online would likely engage in such behavior towards the CW. Revealing the CW’s true identity would also likely lead to the public exposure of the CW’s physical whereabouts. This could in turn subject the CW to more than simply online harassment and could very easily jeopardize the CW’s safety.
Mackey has never been convicted or even accused of a single violent crime, or of threatening violence online. There is no evidence at all of any kind of organized or predictable effort by the online “alt right” to physically target witnesses. Yet now, the government claims that Mackey’s Sixth Amendment rights can be nullified because of the vague possibility a witness against him might face “harassing behavior.” In essence, Mackey loses his constitutional rights, because if he benefited from them, it might result in “stochastic witness intimidation.” To bolster its argument, the government cites the example of an FBI agent on the case, who was publicly identified and subsequently… contacted by a journalist, while facing no other threats!
At the time of the defendant’s arrest, the name of the FBI’s lead case agent on the investigation became public. In the wake of the arrest, the agent’s picture, hometown, high school, and other personal details were posted online in right-wing blogs, which sought to portray the agent as part of a liberal conspiracy that included other law enforcement professionals (who were also named publicly as associates of the agent). The agent was also contacted by a person purporting to be a journalist, who reached out to the agent via the agent’s personal email address and cellphone number, neither of which is public. The FBI took these developments very seriously, conducting a formal threat assessment (no credible threat of violence was identified during the monitoring period), and the agent continues to take certain precautionary measures designed to ensure her safety.
Yet incredibly, the court accepted this reasoning. In a recent order, the court held that:
[T]he Government is correct in its assertion that “to claim that intense online attacks do not endanger a person’s physical safety is to ignore the reality of our current world,” as “many acts of politically motivated violence in current society arise from campaigns of online harassment.” (Reply at 3.) For this reason, the court finds that the Government had made an adequate showing that there is real, non-speculative, concern that revealing the CWs identity could lead to online or physical harassment or danger.
In other words, if a witness’s testimony might aggravate right-wing people on the Internet, it justifies providing that witness special treatment that is denied even to witnesses against MS-13 or the Sinaloa Cartel.
If the DOJ’s argument is allowed to carry the day all the way to Mackey’s conviction and incarceration, then this playbook will be available for prosecuting an unlimited number of dissidents. They can be slapped with anonymous allegations of criminal plots, and denied the full chance to defend themselves, on the flimsy grounds that anybody who irritates the dissident right will face “harassment.”
Last month, we explained why the Mackey case was so ominous for the entire pro-America movement, and not just Mackey himself:
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 … now makes use of outright felony prosecutions with the threat of decade-long prison sentences.
Revolver’s Darren Beattie explained why this is the most important First Amendment case in the country
.@DarrenJBeattie And Steve Bannon Discuss The Biden Regime Trying To Jail Douglass Mackey Over Memes He Posted On Twitter
Darren: "It's the most important First Amendment story you've never heard of."
— The Columbia Bugle ?? (@ColumbiaBugle) February 8, 2023
These latest developments up the stakes by an order of magnitude, and show that “disinformation” isn’t the only scam that the left is trying to quickly, and quietly, jam into America’s criminal law. The Biden Department of Justice hopes to take the “stochastic terrorism” and “online harassment” scams, previously the domain of Taylor Lorenz-esque hysterics, and codify them into federal law as tools to take down dissidents.
Over the past year, the Mackey case has become about far more than whether one man goes to prison for illegal memes. It is, quite literally, the first great battle about whether true dissent will be allowed on the American Internet, or whether, in the name of stopping “harassment” and “disinformation,” it will have a government boot stamping on it, forever.