My New One at Slate: “2016 Election Fraudster ‘Ricky Vaughn’ Might Finally Be About to Face the Music”

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 2nd 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….

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