Doug Mackey officially kicks off his appeal in the Hillary Clinton "meme" case
Doug Mackey officially kicks off his appeal in the Hillary Clinton "meme" case
Read the full brief and highlights from my appeal to the Second Circuit Court of Appeals here.
On Friday, January 5th, my legal team and I officially filed my appeal to the Second Circuit Court of Appeals.
You can download and read the entire appeal here (see below the break for highlights from the brief):
This first-rate legal brief did not come cheap. I owe the lawyers a lot of money, and you can help me defray the ongoing costs at the links below. Big donors, please feel free to email mackeymemecase@proton.me if you’d like more information about how you can help cover these costs with a tax-deductible donation to the Meme Defense Fund.
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Here are some highlights from the legal brief:
The Government is trying to put Mackey in prison for tweeting two deceptive memes about how to vote, on the theory that any false speech that “hampers” voting violates the Enforcement Act of 1870. This is unprecedented, and lawless.
Consistent with its text and history, § 241 has never been employed to criminalize political misinformation, despite the practice’s ubiquity.
[T]he Government presses a reading of § 241 that would necessarily criminalize not only lies about how to vote, but also lies about also whether and for whom to vote. Such a sprawling political speech code is in the teeth of every applicable canon for reading criminal laws, and grossly offends the First Amendment.
The Government premised venue exclusively on the fact that internet data associated with Mackey’s tweets briefly crossed EDNY waters or airspace on its way to the broader internet. But this theory would allow for trial in any district that has internet. And a venue theory that is indifferent between Brooklyn, NY and Brooklyn, WI makes a hash of this core constitutional protection. Unsurprisingly, this Court has never upheld criminal venue on such a threadbare basis.
[T]he record failed to reveal any proof that Mackey coordinated his memes with others, or entered any agreement to violate federal law. At most, the Government adduced evidence suggesting that other Twitter trolls proximate to Mackey may have colluded with one another. Guilt by association may prove effective at trial, but is paradigmatically insufficient as a matter of law.
[P]rosecutors purported to find a ban on election misinformation in a 150-year-old statute to combat KKK violence.
Section 241 does not give the Government a roving license to criminalize political misinformation.
[T]he decision to prosecute deceptive speech is without precedent in § 241’s 150-year history, as the Government openly admitted at oral argument on the bond motion.
[T]he premise of this prosecution is that § 241 criminalizes anything, even deceptive speech, that may “hamper,” “frustrate,” “slow,” or “prevent” voting. […] Consider the repercussions of that interpretation[.]
If deceiving voters “injures” their right to vote, then any such deceit is a crime—and that interpretation is so overinclusive and so chilling that it would readily fail any form of heightened scrutiny under United States v. Alvarez, 567 U.S. 709 (2012).
A progressive activist’s Twitter posts did the same thing as Mackey’s, except she told Donald Trump supporters to vote by text. [,,,] Unlike Mackey, she was not prosecuted. That (not to mention the suspect timing of the indictment) at least suggests political bias, which reinforces why restricting speech in this context is especially fraught.
[O]nce § 241 is extended to deceptive speech, there is no way to stop it from erecting a “Ministry of Truth.” […] The Government’s reading of § 241 would invite prosecution for every hotly debated political rumor and conspiracy theory […] Extending § 241 to voter deception thus turns “the state” into “the arbiter of truth.”
[T]he Supreme Court has been clear that statutes facing First Amendment challenge cannot be artificially narrowed.
The Government secured Mackey’s conviction using not only an unprecedented interpretation of § 241. It also resorted to a novel and untenable theory of venue. […] Both the Constitution and the Federal Rules guarantee a defendant’s right to be tried in “the district where the crime was ‘committed.’” […] This is not a matter of “mere procedure.” […] The venue right was “highly prized by the founding generation,” […] which recognized that giving prosecutors “leeway” to handselect a “favorable” forum “leads to the appearance of abuses, if not to [actual] abuses.” […] To prevent “prosecutorial abuse” and its “appearance,” the Founders thus limited venue to the district “where the wrong was committed.”
[T]he Government prosecuted Mackey in EDNY. It maintained that venue was proper solely because internet data associated with Mackey’s tweets briefly flashed through EDNY en route to elsewhere. But such data passes through every district in the country, so treating that fleeting connection as establishing venue would license the Government to prosecute any internet-linked offense anywhere. The Constitution denies that “leeway.”
To ensure compliance with constitutional safeguards against “prosecutorial abuse, […] venue provisions “should not be so freely construed as to give the Government the choice of a tribunal favorable to it” […] “The founding generation had a deep and abiding antipathy to letting the government arbitrarily choose a venue in criminal prosecutions.”
[T]he “ever-increasing ubiquity of the Internet” amplifies the “‘danger’” that the Government will charge “cybercrimes” as if they occurred in “some metaphysical location” that “allow[s] the [G]overnment to choose its forum free from any external constraints” […] That is an impermissible and “outlandish outcome” that “cannot be squared with the Constitution.”
The district court identified no case holding that venue lies in every district traversed by data associated with nationally accessible internet posts—and, at oral argument on the bond motion, the Government conceded no such case exists. That itself is powerful evidence.
“Though our nation has changed in ways which it is difficult to imagine that the Framers … could have foreseen, the rights of criminal defendants which they sought to protect in the venue provisions of the Constitution are neither outdated nor outmoded.”
Prosecuting Mackey in EDNY on these facts “prejudiced” him and “undermined the fairness of [his] trial.” […] Given the meager nexus between this case and EDNY, selection of that forum (headquarters of the Clinton campaign) at minimum risked the “appearance” of manipulation.
Even if the Government’s § 241 theory and venue theory were legally viable, the evidence it introduced cannot sustain his conspiracy conviction. The trial evidence showed that Mackey found publicly available memes and posted them without anyone asking him to do so; there was no contrary evidence. The district court upheld the conviction anyway based on evidence suggesting that others […] may have conspired, but precedent forecloses such guilt-by-association analysis[.]
[T]here was no evidence that Mackey coordinated with anyone to create the memes, solicited them from anyone, or was asked by anyone to post them.
Mackey’s use of popular hashtags is not probative of any conspiratorial agreement with anyone.
The district court found the evidence sufficient, but its analysis was wrong at every turn. […] Mackey cannot be guilty of conspiracy unless he agreed to participate in unlawful conduct. […] Yet even the Government did not take the position that any of Mackey’s other Twitter trolling was criminal; nor did the district court suggest otherwise.
The district court’s claim that Mackey also participated in “discussing, creating and spreading deceptive information about how to vote” was not supported with any record citations. [T]he record shows the opposite.
Mackey’s work with the War Room “to spread their political messages” was textbook First Amendment speech […] Treating that conduct as evidence of criminal intent, as the court did, […] only exacerbates the offense to the First Amendment.
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When I first saw this case, I thought it was a joke. It reminded of the case against Erika Riemann in East Germany; 10 years imprisonment for drawing a bow on a portrait of Stalin:
https://youtu.be/znb_X48WXUg?t=213
What was the point of fighting the Cold War when 34 years later there is no difference between the two societies?