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.

This case concerns the criminal conviction of Douglas Mackey 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. All parties agree 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). The primary legal questions before this Court are whether Section 241 prohibits such intentionally misleading statements and whether it does so without being substantially overbroad in violation of the Constitution.

Section 241 properly construed does punish purposeful lies about when, where, or how people vote and is not overbroad. It prohibits, among other things, conspiracies to “injure . . . 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.” 18 U.S.C. § 241. Its prohibition on conspiracies to “injure” proscribes purposeful lies about the mechanics of voting in federal elections because that conduct inflicts an “injury” redressable under tort law dating back over three hundred years. See Restatement (Second) of Torts § 865 (Am. L. Inst. 1979); Restatement (First) of Torts § 865 (Am. L. Inst. 1939). Construing conspiracies to “injure” to encompass conspiracies to engage in conduct recognized as tortious at common law preserves Section 241’s important protection of the right to vote while avoiding the First Amendment overbreadth concerns that would arise from an open-ended reading of the statute to criminalize deceptive, but not tortious, political speech.

A unanimous Supreme Court in an opinion by Chief JusticeRehnquis t took just this approach in construing the almost contemporaneously enacted Enforcement Act of 1871. See Haddle v. Garrison, 525 U.S. 121, 124 (1998). The Haddle Court concluded that a plaintiff is “injured” under Section 2 of the 1871 Act when the plaintiff suffers “a compensable injury under tort law.” 525 U.S. at 126. In parallel fashion, Section 241’s proscription of conspiracies “to injure” someone in their exercise of a federal right extends to conspiracies to infringe the right to vote through knowing lies about “voting requirements and procedures,” Mansky, 138 S. Ct. at 1889 n.4, because intentional interference with the right to vote is a compensable injury under tort law.

Haddle’s conclusion that the injuries recognized by Section 2 of the Enforcement Act of 1871 are those cognizable under the common law of torts applies to Section 241, which derives in relevant part from Section 6 of the Enforcement Act of 1870. The same term used in two laws passed within a year of each other should be construed consistently, particularly where both laws addressed a common subject and sought a common objective—ending resistance to Reconstruction. Indeed, the Supreme Court recognizes the two statutes to be “close[] . . . analogue[s].” Griffin v. Breckenridge, 403 U.S. 88, 98 (1971).

Applying Haddle’s interpretation that a conspiracy to “injure” under Section 241 means a conspiracy to undertake conduct recognized as tortious at common law does not mean that every conspiracy to commit a tort violates Section 241. That would transgress the Supreme
Court’s instruction that Reconstruction laws should not be interpreted as “open-ended federal tort law applicable to all tortious, conspiratorial interferences with the rights of others.” Kush v. Rutledge, 460 U.S. 719, 725-26 (1983) (emphasis added) (cleaned up). Instead, Section 241 more narrowly prohibits conspiracies to commit a tort only when the tortious act is committed for the purpose of infringing a right protected by “the Constitution or laws of the United States.” 18 U.S.C. § 241; see United States v. Price, 383 U.S. 787, 800-01, 806 (1966).

Private tortious conspiracies thus violate Section 241 only when they seek to (i) infringe a constitutional right secured against private actors, see, e.g., United States v. Kozminski, 487 U.S. 931, 940 (1988) (Thirteenth Amendment); United States v. Guest, 383 U.S. 745, 757-60 (1966) (right to travel), or (ii) infringe a right created by a federal law enforceable against private parties, Price, 383 U.S. at 798. For example, while the common law imposes liability for burglaries and muggings, a conspiracy to commit these torts is not punishable under Section 241 unless the tortious conduct is undertaken for the purpose of interfering with a federally protected right. See United States v. Cruikshank, 92 U.S. 542, 549 (1875); cf. Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 278 (1993) (“A burglar does not violate the Fourth Amendment . . . nor does a mugger violate the Fourteenth.”).

Applying the Haddle definition of “injure” to Section 241 has three implications relevant to this appeal:

First, a conspiracy to deny the right to vote by intentionally misleading voters about voting mechanisms and procedures in a federal election constitutes a conspiracy “to injure” because the common law of torts has long recognized liability for interference with the right to vote.
One who undertakes a consciously wrongful act (including fraud) that (i) intentionally deprives another of the right to vote or (ii) seriously interferes with the right to vote inflicts a legally cognizable injury for which a remedy is available in tort. See Restatement (Second) of Torts
§ 865; Restatement (First) of Torts § 865.

Second, construing conspiracies “to injure” within Section 241 to encompass conspiracies to commit this tort avoids constitutional conflict with the First Amendment. There is no First Amendment right to spread knowingly false information about voting mechanisms and procedures in a federal election with the intent to disenfranchise voters. See Mansky, 138 S. Ct. at 1889 n.4. Applying the Haddle definition also avoids any “substantial” overbreadth in the scope of Section 241 relative to its “plainly legitimate applications” as would be necessary to justify facial invalidation. Virginia v. Hicks, 539 U.S. 113, 120 (2003). The supposed potential for an explosion of prosecutions for protected speech that troubles Defendant Mackey and his amici is dispelled by the Haddle construction of “injure” because most of their proffered examples do not impose a harm cognizable under tort law and thus would not fall within the ambit of conspiracies to “injure” under Section 241.

Third, a conspiracy undertaken to deny the right to vote in a presidential election, as alleged here, violates Section 241 because thetortious conspiracy would infringe multiple federal rights securedagainst both private parties and state actors:

It violates the Article I, Section 2 right to vote for members of Congress, see Ex Parte Yarbrough, 110 U.S. 651, 663-64 (1884), because disseminating lies about the mechanics of voting to disenfranchise voters in a presidential election necessarily disenfranchises voters in simultaneous congressional elections;

It violates the “right[] and privilege[] . . . secured to citizens of the United States by the Constitution” for voters eligible under state law “to vote for presidential electors,” In re Quarles, 158U.S. 532, 535 (1895); and

It violates the federal right to engage in support or advocacy for presidential candidates free from injury guaranteed by 42 U.S.C. § 1985(3).

The Government correctly contends that Section 241 prohibits conspiracies to disseminate knowingly false information about the time,place, and manner of a presidential election to mislead voters. Enforcement of this prohibition is particularly needed given the ease with which false information can be spread today by bad actors, and the growing loss of confidence in the integrity of our elections. See generally Nathaniel Persily & Charles Stewart III, The Miracle and Tragedy of the 2020 U.S. Election, 32 J. Democracy 159 (2021).