Clinton Meme Trial Could Chill Free Speech for All Americans, Attorney Says

A general view of the Department of Justice building in Washington, on April 18, 2019. (Amr Alfiky/Reuters)

The Department of Justice (DOJ) is being accused of using obscure conspiracy laws against conservatives.

For example, violations of the Freedom of Access to Clinic Entrances (FACE) Act ordinarily would bring a year in prison. But in the past year, a host of sidewalk counselors at abortion facilities have been charged with FACE violations and also Conspiracy to Violate Civil Rights for posting to Facebook about where they would gather.

The conspiracy charge adds a potential 10 years in federal prison.

Douglass Mackey, 31, is on federal trial in the Eastern District of New York for posting a meme under the Twitter handle “Ricky Vaughn” in 2016, advising voters they could vote for Hillary Clinton for president via text message or social media.

Twitter profile page of Douglass Mackey ("Ricky Vaughn"). This account was used by Mackey between Nov. 3 and Nov. 14, 2016, according to the Department of Justice's court filing. (The Epoch Times/ Screenshot via Internet Archives)

The DOJ charged him five years later, in 2021, with Conspiracy Against Rights (18 U.S. Code § 241), which carries up to 10 years in prison.

“This is a law that was passed in the aftermath of the Civil War, designed to protect the rights of newly freed slaves in the post-civil war South to vote,” James Lawrence, attorney for the Douglass Mackey Defense Fund, told The Epoch Times. “Understandably, there were threats to the physical safety of those people with respect to the Ku Klux Klan, and that's why this is a provision from the Ku Klux Klan Act.”

Enacted in 1871, the Conspiracy Against Rights code within the Ku Klux Klan Act has two parts:

"If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or

"If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—

"They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death."

Intent to Interfere

There's no mention in the act of posting political memes.

However, the DOJ said in its indictment that Mackey, “together with others, conspired to injure, oppress, threaten and intimidate one or more persons in the free exercise and enjoyment of a right and privilege secured to them by the Constitution and laws of the United States”—that is, the right to vote.

It's a statute that has been used historically to go after conduct that's identified in the statute, which is conspiring to physically interfere with someone's constitutional rights.

“But it's not been used in the way it's being used in the Mackey trial, to go after somebody for speaking out on a public concern,” Lawrence said.

“The government's position in Mr. Mackey’s case is that all they have to prove is the intent to interfere with the right to vote—they don't have to actually show that those memes moved any votes or anybody that saw the memes didn't vote as a result of viewing them.

“The mental intent to interfere is enough under the statute,” he added. "If one carries that to its logical conclusion, that could have implications for a range of other conduct outside of the scope of this case."

The prosecution over a meme casts a shadow over the exercise of First Amendment rights and the ability to speak freely, Lawrence said.

“When you think about the prosecution of Douglass Mackey and the implications of a prosecution like this, regarding the really the chilling effects that they could have on speech, it's troubling,” he said.

“If the government's theory prevails in this case and ultimately, the government is successful in prosecuting Douglass Mackey, the First Amendment right of all Americans are potentially implicated because, depending on the administration in power, the precedent can be used to chill or undermine the Constitutional Rights of anyone, if they have a political view that differs from those that are in power.”

The prosecution notably concerns the ability of Americans to use satire, which has been used throughout history to critique power, he said.

“In this case, power is using a very old statute in an attempt to chill satire. So, it matters.”

The DOJ didn't respond by press time to a request by The Epoch Times for comment.