Just before Hillary Clinton lost the 2016 election to Donald Trump, a 26-year-old Twitter user named Douglas Mackey posted some memes that got him indicted on federal charges.
But not immediately. Mackey wasn’t indicted until January 2021, days after Joe Biden took office.
The Twitter posts that the government said were made in violation of federal law were captioned pictures styled to resemble campaign ads. The text on the pictures said supporters of Hillary Clinton could vote for her by text message, or by typing the words “Hillary #PresidentialElection” on Facebook or Twitter while the polls were open.
For this, Mackey was put on trial and convicted. On October 25, 2023, he was sentenced to spend seven months in prison. He was allowed to remain free pending his appeal, and on Wednesday, almost two years later, the U.S. Court of Appeals for the Second Circuit issued its ruling. The judges said there was insufficient evidence to prove the government’s case. They sent it back to the district court “with instructions to enter a judgment of acquittal.”
This is good news, but for four years, an American citizen had the threat of prison hanging over his head for sharing clearly humorous posts on a social media platform. Is there a registered voter anywhere in the United States who believes it’s possible to vote by sending a text or typing a candidate’s name on the internet on Election Day?
“The government presented no evidence at trial that Mackey’s tweets tricked anyone into failing properly to vote,” the court noted.
And interestingly, the government didn’t dispute that Mackey had a First Amendment right to independently post the memes.
So, to quote the title of Hillary Clinton’s post-election-loss book, “What happened?”
The appellate court’s opinion relates that a man named Robert McNees captured screenshots of Mackey’s posts and reported them to Twitter. Also, in the months prior to the election, “at least one member of the Clinton campaign staff” saw memes “containing misinformation concerning how to vote” on the political messaging board 4chan.
Four years later, the government charged Mackey with violating 18 U.S.C. Section 241, conspiring “to injure, oppress, threaten, or intimidate any person” in the “free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States.”
Government lawyers paid with your tax dollars argued in court that Mackey had knowingly and intentionally entered into an agreement to injure other citizens in the exercise of their right to vote, and that he did this by communicating with others in private Twitter chat groups with names like “War Room.”
Except they couldn’t prove that Mackey had read the comments in the groups that were cited as evidence of intent to prevent citizens from voting. They couldn’t even prove he was a member of some of the groups at the time the comments were posted.
The appeals court’s opinion describes how the jury told the judge they could not reach a unanimous decision, and the judge told them to keep trying. The jury reported a second time that they were deadlocked. The judge sent them back with instructions “to continue deliberations in order to reach a verdict.” Eventually the jury came back with a verdict of guilty.
It’s extremely troubling that the government looked for a way to charge Mackey with conspiracy when the underlying action, posting a meme on the internet, was acknowledged to be protected speech under the First Amendment.
If you want to live in a free country, and not everybody does, you have to recognize and accept that there are some things the government is simply not allowed to do. With only a few exceptions, it is not allowed to abridge the freedom of speech.
When Elon Musk bought Twitter in October 2022 and opened the company’s internal communications to independent reporters, evidence emerged that the Biden White House and multiple agencies in the U.S. government were directing and coordinating a massive surveillance and censorship operation on social media platforms in the name of preventing “misinformation,” as defined by the government.
President Trump now appears to be dismantling that apparatus through layoffs and funding cuts, which has enraged U.S. Senator Alex Padilla, formerly in charge of California’s elections as Secretary of State.
Together with Rep. Joe Morelle of New York, Padilla sent a series of letters to the leadership of the Cybersecurity and Infrastructure Security Agency (CISA) complaining about CISA’s “pause on all election security-focused activities, the termination of funding for the Election Infrastructure Information Sharing and Analysis Center (EI-ISAC), and the firings of CISA employees who previously worked on election security, including misinformation and disinformation issues.”
On Monday, Padilla sent another letter to CISA leadership demanding answers to such questions as, “What is the status of the Election Infrastructure Subsector Government Coordinating Council and the Election Infrastructure Subsector Sector Coordinating Council?”
The members of these councils are listed on CISA’s website and include some state and local elections offices as well as the U.S. Departments of Defense, Commerce, Homeland Security and Justice, the U.S. Postal Service, Amazon Web Services, the Associated Press and a long list of companies that make voting machines.
Elections in the United States are run by the states, not the federal government. What may have begun as technical assistance with cybersecurity seems to have turned into something like a TSA checkpoint for political comments.
Freedom will be safer if the federal government does not have the funding or the staffing to use AI tools to read every word of every internet post, pass judgment on what is “misinformation” and then go after people for it with whatever overstretched statute they can find to put in front of a judge.
On Tuesday, the U.S. Supreme Court agreed with President Trump that a lower court can’t stop him from firing federal employees.
He should start with everyone who thought it was a good idea to prosecute Douglas Mackey.
Write Susan@SusanShelley.com and follow her on X @Susan_Shelley