Category Archives: First Amendment theory

“Law School clinic files brief to combat intentionally false statements about voting”

Yale Daily News:

Yale Law School’s Media Freedom and Information Access Clinic filed an amicus brief on Feb. 12 in United States v. Mackey, a case currently at the Second Circuit Court of Appeals. The case involves an influential social media user convicted of attempting to convince voters to believe they could cast their votes through a false voting mechanic. 

The case centers on claims that Douglass Mackey, a social media influencer on X, formerly known as Twitter, made during the 2016 presidential election campaign. Mackey, who was known to his 58,800 followers as Ricky Vaughn, repeatedly tweeted false claims to supporters of former Secretary of State Hillary Clinton LAW ’73 that they could cast their ballots via text message in the weeks leading up to the election.

Mackey was convicted by a New York jury in March 2023, ordered to pay a $15,000 fine and charged with violating Section 241, which prohibits conspiring to “injure” individuals’ federal rights or privileges, including the right to vote. He was sentenced to seven months in prison and appealed his conviction to the Second Circuit.

The YLS Media Freedom and Information Access Clinic filed its amicus brief in collaboration with Protect Democracy, a nonpartisan anti-authoritarian organization, on behalf of election law expert and UCLA School of Law professor Richard Hasen. The brief argues that a Reconstruction-era civil rights law can be utilized to prosecute deliberate misinformation regarding voting procedures, while still upholding the First Amendment’s right to freedom of speech….

“I really appreciated the opportunity to work on this case because I think combating election disinformation is going to be key to preserving our democracy, this year and beyond,” Victoria Maras LAW ’25, an MFIA clinic member who worked on the brief, told the News. “As a former Field Organizer, I know how important it is to get the right information out to voters, and, by the same token, how harmful it can be when misinformation spreads.”

Maras said she was grateful that this brief can show how people who conspire to spread false election information can be held accountable without threatening First Amendment free speech rights.

Another MFIA clinic member, Ben Menke LAW ’25, told the News that delving into the history of Section 241, which was passed in 1870, led him to examine transcripts of debates in Congress during that time. Through this research, Menke said that he uncovered the motivations of the legislators who first enacted the law, as well as the legal opinions of the judges who applied Section 241 at the time.

“Our brief offers clarity on the proper way to construe Section 241, and we show that the law is consistent with the First Amendment,” Menke told the News. “Bad actors are finding it easier to spread knowingly false information to interfere with the right of the people to vote. Enforcing Section 241 is one way the federal government can respond to this threat.”

In a statement to the News, James Lawrence, Mackey’s attorney, said that their core argument in defense of Mackey is that he did not have fair notice, required by the Fifth Amendment, that his conduct violated “clearly established” law.

Lawrence claimed that the amicus brief uses a Supreme Court case about a different law to argue that a rarely used legal concept, not accepted in many state courts and never applied in New York, should be turned into a federal crime for misleading election information.

“If a team of federal prosecutors never came up with this convoluted argument after pursuing this case for more than three years … how could Douglass Mackey be expected to know his conduct violated Section 241 in 2016?” Lawrence wrote in the statement. 

The MFIA clinic declined to comment on Lawrence’s statement….

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“At worst [Douglas Mackey’s tweets containing false information about how to vote] were calculated to cause voters to send futile text messages and then stay home on election day.”

Pretty remarkable statement in Douglas Mackey’s reply brief in his criminal appeal before the Second Circuit. To me, the “at worst” it seems pretty bad!

As a reminder, Protect Democracy and the Yale Media Freedom and Information Access Clinic filed this Second Circuit amicus brief (with me as client and co-counsel) in United States v. Mackey.

Mackey was convicted “under 18 U.S.C. § 241 for conspiring “to use Twitter to trick American citizens into thinking they could vote by text and stay at home on Election Day—thereby suppressing and injuring those citizens’ right to vote.” Gov’t Br. 2. Mackey has argued that section 241 does not cover such a scheme and that the law is facially unconstitutional under the First Amendment because it punishes too much protected speech.

In our brief, we explain that the statute, properly construed, both bars lies about when, where or how people vote intended to deprive people of their right to vote and that limiting section 241 to such empirically verifiable false speech assures that the law does not violate the First Amendment.

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Our Amicus Brief in United States v. Mackey: Lying About When, Where or How People Vote Violates Federal Law (18 USC 241) and Prosecution is Consistent with the First Amendment

Protect Democracy and the Yale Media Freedom and Information Access Clinic filed this Second Circuit amicus brief (with me as client and co-counsel) in United States v. Mackey. Mackey was convicted “under 18 U.S.C. § 241 for conspiring “to use Twitter to trick American citizens into thinking they could vote by text and stay at home on Election Day—thereby suppressing and injuring those citizens’ right to vote.” Gov’t Br. 2. Mackey has argued that section 241 does not cover such a scheme and that the law is facially unconstitutional under the First Amendment because it punishes too much protected speech.

In our brief, we explain that the statute, properly construed, both bars lies about when, where or how people vote intended to deprive people of their right to vote and that limiting section 241 to such empirically verifiable false speech assures that the law does not violate the First Amendment. The Supreme Court has already stated that the government “may prohibit messages intended to mislead voters about voting requirements and procedures” consistent with the First Amendment. Minn. Voters All. v. Mansky, 138 S. Ct. 1876, 1889 n.4 (2018). Further, as explained in Protect Democracy’s blog post on the filing:

The primary question before the Second Circuit in Mackey’s appeal is whether the federal civil rights statute he was convicted under – which bans conspiring to “injure” any person in their exercise of federal rights – actually bars conspiracies to circulate false information about voting mechanisms and procedures. Professor Hasen’s amicus brief explains why intentionally false statements about voting mechanisms and procedures violate federal law, and why such speech can be punished without running afoul of the First Amendment’s protections.

In particular, to establish the applicability of Reconstruction-era civil rights protection to internet memes, the brief tracks the history of legal actions protecting the right to vote back to England in 1703. That history shows, among other things, a three-century-long recognition among judges that an intentional deprivation of the right to vote constitutes an “injury” for which the law provides a remedy. As a result, the brief argues, Mackey’s conduct clearly constituted a conspiracy to “injure” under long-recognized legal principles, even if the Reconstruction Congress would have had no idea what an internet meme is.

You can find the introduction to our brief below the fold, which relies heavily on common law tort principles protecting the right to vote and its explanation in the Restatement (2d) Torts section 865.

Continue reading Our Amicus Brief in United States v. Mackey: Lying About When, Where or How People Vote Violates Federal Law (18 USC 241) and Prosecution is Consistent with the First Amendment
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“Wisconsin Judge Dismisses Felony Charge in ‘Ballot Selfie’ Case”

NYT:

A Wisconsin judge on Monday dismissed a felony charge against a school board candidate who had posted a photograph on Facebook of a ballot with his name filled in.

In his ruling, the judge, Paul V. Malloy of Ozaukee County, threw out the count of voter fraud against the man, Paul H. Buzzell, 52, a former school board member in Mequon, a suburb of Milwaukee, who was voted back onto the board during an election in April, online court records show.

Judge Malloy ruled on a motion to dismiss by Mr. Buzzell’s lawyers, who argued that the state law prohibiting so-called ballot selfies was overly broad and violated the constitutional guarantee of free expression.

“What is at stake is branding a politician a felon for declaring to the world that the politician displayed” a marked ballot “showing a vote for himself in an election,” the motion said. Mr. Burrell would have faced a maximum possible sentence of three and a half years in prison and a $10,000 fine had he been convicted. He would also have been barred from running for elected office.

The case reflects the debate among states over selfies of ballots and of people showing how they vote. Some legislators have argued that public displays of marked ballots can be used to influence voters in an election or to promote vote buying. Others, including the American Civil Liberties Union, say such laws banning voting selfies on social media restrict free spee….

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ELB Podcast 5:3: The Trump Prosecutions, the First Amendment, and Election Interference (Genevieve Lakier and Eugene Volokh)

New ELB Podcast:

Do gag orders against presidential candidate Donald Trump in his civil or criminal trials violate the First Amendment?

What should we make of Trump’s claims that his actions to overturn the results of the 2020 elections are protected free speech?

How should we assess the dangers of government “jawboning” of social media platforms to remove objectionable conduct?

On Season 5, Episode 3 of the ELB Podcast, we delve into these issues with First Amendment experts Genevieve Lakier and Eugene Volokh.

You can subscribe on SoundcloudApple Podcasts, and Spotify.

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How Big a Risk is Government “Jawboning” Where Government Pressures Media or Platforms to Include, Remove, or Demote Content?

The Knight First Amendment institute has a first-rate set of papers on this topic that just posted. And it couldn’t be more timely with Friday’s quick cert. grant in the Murthy v. Missouri case.

I was struck in my conversation for SDP last week with Genevieve Lakier and Eugene Volokh about jawboning that this is a cross-partisan issue: just as the right is worried about pressure from the Biden administration, shouldn’t the left be worried about pressure from a future Trump or Trump-like administration?

This case should produce some interesting briefs and perhaps interesting constellations of Justices.

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“Supreme Court turns away coal baron’s defamation claim against news companies”

NBC News:

The Supreme Court on Tuesday declined to consider overturning a landmark case that gives protections to news organizations facing defamation claims by rejecting an appeal brought by West Virginia coal baron Don Blankenship.

Blankenship, also an erstwhile Republican Senate candidate, sued various news organizations for referring to him as a convicted felon when in fact he was convicted of a misdemeanor in relation to a mining disaster in 2010 that killed 29 miners.

He claimed that his loss in the 2018 Republican Senate primary in West Virginia was attributable to the erroneous comments repeated in the media, which he suggested were deliberate.

Among the defendants is MSNBC, a division of NBCUniversal, which also owns NBC News. CNN, Fox News and the Washington Post are among other news organizations that were sued.

Blankenship asked the court to overturn the 1964 Supreme Court defamation ruling in New York Times v. Sullivan, which concluded that there must be evidence of “actual malice” for a public figure to pursue a defamation claim.

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“Trump trials: What counts as protected free speech?”

Christian Science Monitor:

“There’s nothing more protected under the First Amendment than political speech,” Mr. Lauro said.

Many legal analysts are skeptical this approach will work in a courtroom. There is no First Amendment right to engage in a conspiracy to break the law, they point out, and Mr. Trump has been charged with urging others to take illegal actions.

Nor is “political” speech actually uniquely protected under the law, they say.

But some experts add that there are fuzzy lines in First Amendment jurisprudence. It is an area of law that is not as settled as one might think, given the Constitution’s age.

Judges in Trump cases may also be reluctant to slap pretrial speech restrictions on a former president and current political candidate who is adamant about First Amendment rights, even if he makes inflammatory comments about his legal situations.

“The basic point is that there are areas of uncertainty,” says Frederick Schauer, a professor and First Amendment scholar at the University of Virginia School of Law. “Raising a First Amendment defense might, depending on the facts, not be completely frivolous.”…

Urging in the abstract that people ought to rob banks to bring capitalism to its knees would be protected under the First Amendment, says Professor Schauer. Urging particular people in a nonpublic manner to rob a bank and give the speaker some of the money would not.

“So a lot may depend on the fuzzy line between protected advocacy of illegal activity and unprotected criminal conspiracy,” says Professor Schauer.

Some experts say Mr. Trump’s lawyers’ description of his activities as “political” speech may be more of a rhetorical flourish than legally meaningful.

Political speech is often presented as axiomatic of the type of speech that the First Amendment is designed to protect, says Gregory Magarian, a constitutional law professor at Washington University School of Law in St. Louis. That does not make it a special category, he says. Speech is speech.

The loser of an election is allowed to say they really won, even if everyone around them is saying otherwise. 

“But if the loser is the president and he is using the power of the office to overturn an adverse election result, that’s way off in its own ZIP code in terms of protecting political dissent,” says Professor Magarian.

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“Biden administration tells US Supreme Court to review social media laws”

Reuters:

President Joe Biden’s administration urged the U.S. Supreme Court to take up a dispute over Republican-backed laws in Texas and Florida that would undercut efforts by social media companies to curb content deemed objectionable on their platforms.

The states call the actions impermissible censorship.

The justices are considering taking up two cases involving challenges to the state laws brought by technology industry groups including NetChoice, whose members include Meta Platforms Inc (META.O) Alphabet Inc (GOOGL.O), and X, formerly known as Twitter….

Invited to weigh in on the dispute, the Justice Department on Monday said the cases merit review because the laws burden the platforms’ rights under the U.S. Constitution’s First Amendment, which protects freedom of speech.

“When a social-media platform selects, edits, and arranges third-party speech for presentation to the public, it engages in activity protected by the First Amendment,” the Justice Department said in a written brief.

You can find the SG’s brief here. The SG frames 4 questions presented, and urges the Justices to hear only questions 1 and 2 but NOT 3 and 4:

These cases concern laws enacted by Florida and Texas to regulate major social media platforms like Facebook, YouTube, and X (formerly known as Twitter).
The two laws differ in some respects, but both restrict platforms’ ability to engage in content moderation by removing, editing, or arranging user-generated content; require platforms to provide individualized explanations for certain forms of content moderation; and require general disclosures about platforms’ content-moderation practices. The questions presented are:

  1. Whether the laws’ content-moderation restrictions comply with the First Amendment.
  2. Whether the laws’ individualized-explanation requirements comply with the First Amendment.
  3. Whether the laws’ general-disclosure provisions comply with the First Amendment.
  4. Whether the laws violate the First Amendment because they were motivated by viewpoint discrimination.
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“Trump’s defense team casts Jan. 6 indictment as an attack on free speech”

Washington Times:

University of California, Berkeley law professor John Yoo said free speech isn’t an all-encompassing right and some speech is criminal.

“As a historical matter, this is the most important criminal prosecution that has ever been brought by the federal government,” he said. “It should be correspondingly airtight on the facts and the law, but it is not. It is really stretching the law.”…

Jonathan Turley, who teaches constitutional law at George Washington University, said Mr. Smith “issued the first criminal indictment of alleged disinformation in my view.”

“If you take a red pen to all of the material presumably protected by the First Amendment, you can reduce much of the indictment to haiku,” Mr. Turley tweeted. “I felt that the Mar-a-Lago indictment [over mishandling classified documents] was strong. This is the inverse.”

But Ciara Torres-Spelliscy, professor of law at Stetson University College of Law, said a recent Supreme Court ruling in United States v. Hansen “blows Trump’s First Amendment arguments out of the water.”

The court said in the ruling that “words may be enough” for individuals to face criminal charges for encouraging unlawful acts, and assisting “a wrongdoer with the intent to further an offense’s commission.”

“The First Amendment wasn’t a shield for Mr. Hansen and it won’t be a shield for Mr. Trump either,” Ms. Torres-Spelliscy said in an email to The Washington Times.

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“Federal Judge Limits Biden Officials’ Contacts With Social Media Sites”

NYT:

A federal judge in Louisiana on Tuesday restricted the Biden administration from communicating with social media platforms about broad swaths of content online, a ruling that could curtail efforts to combat false and misleading narratives about the coronavirus pandemic and other issues.

The order, which could have significant First Amendment implications, is a major development in a fierce legal fight over the boundaries and limits of speech online.

It was a victory for Republicans who have often accused social media sites like Facebook, Twitter and YouTube of disproportionately taking down right-leaning content, sometimes in collaboration with government. Democrats say the platforms have failed to adequately police misinformation and hateful speech, leading to dangerous outcomes, including violence.

In the ruling, Judge Terry A. Doughty of the U.S. District Court for the Western District of Louisiana said that parts of the government, including the Department of Health and Human Services and the Federal Bureau of Investigation, could not talk to social media companies for “the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.”…

Some experts in First Amendment law and misinformation criticized the Tuesday ruling.

“It can’t be that the government violates the First Amendment simply by engaging with the platforms about their content-moderation decisions and policies,” said Jameel Jaffer, the executive director of the Knight First Amendment Institute at Columbia University. “If that’s what the court is saying here, it’s a pretty radical proposition that isn’t supported by the case law.”

Mr. Jaffer added that the government has to balance between calling out false speech without stepping into informal coercion that veers toward censorship. “Unfortunately Judge Doughty’s order doesn’t reflect a serious effort to reconcile the competing principles,” he said.

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