Friday, June 9, 2023 | Back issues
Courthouse News Service Courthouse News Service

Jury takes up case over deceptive ‘text your vote’ memes

An attorney for the creator of the far-right Twitter account "Ricky Vaughn" said even content that is offensive and indecent is fair game in the marketplace of ideas.

BROOKLYN (CN) — John Lewis, Mahatma Gandhi and Jesus Christ: One thing these iconic individuals all have in common is that they were name-dropped in closing arguments Monday by a lawyer whose client tweeted that Black people, women and immigrants should not be able to vote. 

Douglass Mackey is charged with conspiring to threaten voter rights by tweeting out fake flyers shortly before Election Day in 2016 geared toward supporters of the Democratic candidate Hillary Clinton. 

“Avoid the line. Vote from home,” one such flyer states. “Text ‘Hillary’ to 59925.” 

At trial, a staffer for the Clinton campaign testified about how she considered the flyers using the campaign’s colors and font to be “sneaky,” prompted her to report them to the campaign. 

How many voters were tricked by the flyers is unclear since they became national news. In total, the bogus phone number received 4,900 texts. Some phone numbers "voted" twice; one sent 12 messages; two texts simply said “Hillary for prison.” 

Mackey tweeted the flyers from his formerly influential and now-defunct far-right Twitter account that used the pseudonym “Ricky Vaughn” — a callout to Charlie Sheen’s character in the 1989 movie “Major League.”

During the one-week trial prosecutors showed jurors private messages with other anonymous Twitter accounts discussing how best to amplify the images online. A cooperating witness with the online alias “Microchip” said the intent was precisely to get certain groups to stay home. Defense attorneys claimed Microchip’s account wasn’t reliable and changed over the course of roughly 20 meetings with the government. 

Prosecutors argued that the racist and sexist views espoused by Mackey indicate his intention to trick certain groups into staying home on Election Day. 

“Women are children with the right to vote,” Mackey said in one tweet shown during his trial. In another, he said: “Black people will believe anything they read ok [sic] twitter, and we let them vote why?” Mackey also wrote that children of immigrants and naturalized citizens should not be trusted to vote. 

As for the "Text Hillary" memes, one was written in Spanish, and another featured a woman holding a sign that says “African Americans for President Hillary.” 

“He did it because he thought those groups were important to the election. He did it because he thought the election would be very close,” Assistant U.S. Attorney Erik Paulsen said of Mackey. “And fundamentally, he did it because he thought that it would work.” 

Mackey’s attorney said his client, views notwithstanding, was merely “shit-posting” when he tweeted and retweeted the flyers, which were among hundreds of daily posts. When he took the stand in his own defense Mackey said he didn’t intend to actually stop anyone from hitting the polls. 

For Paulsen, there was nothing funny, or even political, about the posts. 

“There’s no joke here … It’s not satire,” Paulsen said. “It’s just fraudulent information on how to vote.” 

Twitter ultimately deleted tweets with the flyers, often tweeted along with hashtags like Clinton’s campaign slogan #ImWithHer. 

Mackey has garnered support from powerful conservative figures including U.S. Representative Marjorie Taylor Greene and Fox News host Tucker Carlson, who called the prosecution a political move and First Amendment threat. 

The "Ricky Vaughn" account earned Mackey a high rank on a 2016 list of election influencers put out by the Massachusetts Institute of Technology Media Lab. At 107, the account placed just behind U.S. Senator Elizabeth Warren. 

Mackey’s other tweets proposed strategies for getting Trump the win. One said, for instance, that Black voters were the only factor standing in Trump’s way. “Obviously, we can win Pennsylvania. The key is to drive turnout with non-college whites, and limit black turnout,” Mackey tweeted. 

Paulsen told jurors those views make clear Mackey’s intentions. 

“The defendant is not here because of his political beliefs,” Paulsen said. “What he believed is clearly relevant to how and why he acted.” 

Defense attorney Andrew Frisch didn’t angle to get support for his client’s memes. 

“They are offensive, in bad taste. They cross the line of decency,” Frisch said. 

Yet airing out those beliefs, Frisch argued, is the way to weed them out in the “marketplace of ideas.” 

“Speech regulates itself,” Frisch said. “If you give it air, it will suffocate. No one will give it oxygen. It will die.” 

In that marketplace it is the ideology of like those of Lewis, Gandhi and Christ that ultimately “endures and resonates,” Frisch said — he later added John Lennon and Michelle Obama to the list. Given that the voting flyers were eventually debunked and removed from Twitter, Frisch said the marketplace self-corrected. 

Frisch asked jurors to have “courage, confidence and faith” like those revered leaders. But he warned against suppressing offensive ideas along the way, locking them in the proverbial airless basement. 

“It becomes mold or worse, and you’ve got a problem,” Frisch said. “They simmer. They seethe. You breed rage and resentment, not resolution.” 

Frisch argued as well against the venue, noting that Mackey lives in Manhattan, not Brooklyn, where the case is being tried. He also fought the evidence that his client had a secret agreement with any so-called strangers on the internet — in this case, Microchip. 

“It was a place for good ideas, bad ideas, noxious ideas and great ideas,” Frisch said. “It was no conspiracy. It was the internet.” 

U.S. District Judge Ann Donnelly presided over the case. She took it over the day before opening arguments after her colleague, U.S. District Judge Nicholas Garaufis, tested positive for Covid.

Categories:Civil Rights, Criminal, Government, Media, Politics, Trials

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.