I have been arguing that it does not violate the First Amendment to make it a crime to intentionally lie about when, where or how people vote. The Supreme Court suggested as much in the Mansky case in 2018. I made this argument in my Cheap Speech book, and in an amicus brief I filed with Protect Democracy and the Yale Media Freedom and Information Access Clinic in the Doug Mackey Second Circuit case involving his conviction for violating federal law by trying to trick Black voters into voting by text or social media hashtag. (That case was argued in April and awaits decision.)

Last week, the Michigan Supreme Court in People v. Burkman considered whether John Burkman and Jacob Wohl could be constitutionally charged with violating Michigan law for robocalls intended to deter Black voters from voting. The Court held that some election related speech could be criminally punished without violating the First Amendment. It narrowly construed Michigan law in ways that avoided the constitutional problem. Here is the relevant part of the majority opinion on this point:

Because invalidation should be avoided where possible, we offer a limiting construction of MCL 168.932(a)’s catchall “other corrupt means or device” language. Specifically, we hold that when the charged conduct is solely speech and does not fall under any exceptions to constitutional free-speech protections, MCL 168.932(a)’s catchall phrase operates to proscribe that speech only if it is intentionally false speech that is related to voting requirements or procedures and is made in an attempt to deter or influence an elector’s vote. This limiting construction cures the serious and realistic danger that MCL 168.932(a)’s catchall provision infringes constitutional free-speech protections by limiting the statute’s reach to areas where government regulation is constitutionally provided or has been historically upheld. See U.S. Const., art. 1, § 4, cl. 1 (imbuing the states with the authority to regulate the time, place, and manner of congressional elections); Const. 1963, art. 2, § 4(2) (giving the Michigan Legislature the same authority for state elections and also providing the power “to preserve the purity of elections” and “to guard against abuses of the elective franchise”); Minnesota Voters Alliance v Mansky, 585 US 1, 19 n 4; 138 S Ct 1876; 201 L Ed 2d 201 (2018) (“We do not doubt that the State may prohibit messages intended to mislead voters about voting requirements and procedures.”). Intentionally false speech about voting requirements or procedures serves no purpose other than defrauding electors with respect to their franchise. Compare Citizens United, 558 US at 339-340 (discussing the purpose of constitutionally protected political speech).

We reverse the Court of Appeals insofar as it concluded that MCL 168.932(a) was not overbroad, and we offer a limiting construction of the statute’s catchall phrase. We remand to the Court of Appeals so that Court may decide whether defendants’ conduct falls within the limiting construction of MCL 168.932(a) offered here and, if so, resolve defendants’ remaining constitutional arguments.

Two justices dissented in part, believing the statute could not properly be construed to be limited in the way favored by the majority. They did not reach the constitutional questions.

Thanks to Eugene Volokh for the pointer.

UPDATE: I had missed Derek’s earlier coverage of this case when travelling.

I have written this piece for Slate. it begins:

On Friday, a federal appeals court in New York will consider a case with key implications for the 2024 election. At issue is whether it violates federal law to trick people on social media and elsewhere about when, where, or how to vote, and whether such a law is consistent with the First Amendment. A ruling favoring the government would go a long way toward protecting voters.

Back in 2016, a man named Douglass Mackey, tweeting under the name “Ricky Vaughn,” repeatedly directed messages to Black voters encouraging them to vote by text for Hillary Clinton. The intent was to trick these voters out of their franchise; of course, votes sent by text don’t count. Thousands sent texts to vote. We don’t know how many of them later did not attempt to vote in a permissible way.

Mackey was convicted by a jury of violating a Reconstruction-era law, 18 U.S.C. § 241, that made it a crime for “two or more persons [to] conspire 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.” The federal government’s theory was that Mackey conspired with others to deprive voters of their right to vote.

On expedited appeal before the U.S. Court of Appeals for the 2^nd Circuit, Mackey concedes that, “at worst,” his 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.” But, he argues, Section 241 does not apply to conduct such as his, he was not on fair notice that Section 241 applied to conduct like his, and even if it covered this conduct, Section 241 would apply to so much protected speech that it would violate the First Amendment’s protection for freedom of speech.

In an amicus brief supporting the federal government, Protect Democracy, the Yale Media Freedom and Information Access Clinic, and I take issue with Mackey’s first and third arguments….