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.