Douglass Mackey Case: A Failed Prosecution of Election Memes

The United States Court of Appeals for the Second Circuit has reversed the conviction of alt-right pro-Trump Twitter personality Douglass Mackey, known on the platform as “Ricky Vaughn” (a pseudonym chosen in honor of Charlie Sheen’s “Wild Thing” character in the movie Major League). The opinion, which was unanimous among two George W. Bush appointees and a Biden appointee, did not deal with the issue of how far the law can go to criminalize misleading speech about elections, nor did it address issues of selective prosecution. The case against Mackey fell down on the more prosaic ground that the prosecution suffered from a failure of evidence.

In 2016, Mackey and his Twitter allies circulated memes urging Hillary Clinton supporters to vote by text, as if this was a legal method of voting. This was obvious trolling, but trolling of a malicious nature. Mackey argued that it’s not a crime to use memes to mock and make fools of political opponents. The Justice Department, which investigated Mackey and indicted him two days after Joe Biden’s inauguration in the feverish post–January 6 atmosphere, took the position that it’s a crime to lie to people about the time, place, and manner of voting in elections, which can mislead legal voters into not casting legal ballots and not having their votes counted. It indicted Mackey for conspiring to “injure, oppress, threaten and intimidate persons in the free exercise and enjoyment of . . . the right to vote” in violation of 18 U.S.C. Section 241, one of the statutes that Jack Smith later used to charge Donald Trump.

About the Author

Dan McLaughlin

Dan McLaughlin is a senior writer at National Review Online and a fellow at National Review Institute.

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The United States Court of Appeals for the Second Circuit has reversed the conviction of alt-right pro-Trump Twitter personality Douglass Mackey, known on the platform as “Ricky Vaughn” (a pseudonym chosen in honor of Charlie Sheen’s “Wild Thing” character in the movie Major League). The opinion, which was unanimous among two George W. Bush appointees and a Biden appointee, did not deal with the issue of how far the law can go to criminalize misleading speech about elections, nor did it address issues of selective prosecution. The case against Mackey fell down on the more prosaic ground that the prosecution suffered from a failure of evidence.

In 2016, Mackey and his Twitter allies circulated memes urging Hillary Clinton supporters to vote by text, as if this was a legal method of voting. This was obvious trolling, but trolling of a malicious nature. Mackey argued that it’s not a crime to use memes to mock and make fools of political opponents. The Justice Department, which investigated Mackey and indicted him two days after Joe Biden’s inauguration in the feverish post–January 6 atmosphere, took the position that it’s a crime to lie to people about the time, place, and manner of voting in elections, which can mislead legal voters into not casting legal ballots and not having their votes counted. It indicted Mackey for conspiring to “injure, oppress, threaten and intimidate persons in the free exercise and enjoyment of . . . the right to vote” in violation of 18 U.S.C. Section 241, one of the statutes that Jack Smith later used to charge Donald Trump.