Appeals Court Throws Out Conviction of Man Sentenced for Sending Anti-Hillary Memes in 2016

Appeals Court Throws Out Conviction of Man Sentenced for Sending Anti-Hillary Memes in 2016

The U.S. Court of Appeals for the Second Circuit threw out the conviction of Douglass Mackey for “conspiring to injure citizens in the exercise of their right to vote in violation of 18 U.S.C. § 241 based on three memes he posted or reposted on Twitter shortly before the 2016 presidential election.”

Mackey received a seven-month sentence:

During the 2016 election, Mackey posted on his X account, “Avoid the line. Vote from home … Text ‘Hillary’ to 59925,” alongside an image of a woman holding a Clinton sign. This along with several other similar memes were cited by the prosecution as Mackey using “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,” per the Intercept.

Mackey did not serve any of the time due to his appeal of the conviction.

Mackey claimed the government had insufficient evidence that proved “he knowingly agreed to join the charged conspiracy.”

The court, comprising Republican and Democratic judges, agreed with Mackey.

18 U.S. Code § 241 – Conspiracy against rights states explicitly (emphasis mine):

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—

Two or more persons. That’s the key to this section.

The judges said the government failed to prove “that Mackey knowingly entered into an agreement with other people to pursue that objective.”

Welp:

Its primary evidence of agreement, apart from the memes themselves, consisted of exchanges among the participants in several private Twitter message groups—exchanges the government argued showed the intent of the participants to interfere with others’ exercise of their right to vote. Yet the government failed to offer sufficient evidence that Mackey even viewed—let alone participated in—any of these exchanges. And in the absence of such evidence, the government’s remaining circumstantial evidence cannot alone establish Mackey’s knowing agreement. Accordingly, the jury’s verdict and the resulting judgment of conviction must be set aside.

There were three private groups: Micro Chat, Madman #2, and War Room.

The court quoted precedent:

“‘To prove conspiracy, the government must show that two or more persons entered into a joint enterprise for an unlawful purpose, with awareness of its general nature and extent,’ and that those persons ‘agreed to participate in what they knew to be a collective venture directed toward a common goal.’” United States v. Jimenez, 96 F.4th 317, 324 (2d Cir. 2024) (alteration accepted) (quoting United States v. Khalupsky, 5 F.4th 279, 288 (2d Cir. 2021)). The defendant must have “knowingly joined and participated” in this joint enterprise. Anderson, 747 F.3d at 60 (internal quotation marks omitted). “[M]ere association with those implicated in an unlawful undertaking is not enough to prove knowing involvement.” United States v. Nusraty, 867 F.2d 759, 764 (2d Cir. 1989).

(Conspiracy is one part of the law I despise. I swear we just have conspiracy laws to trap people.)

The government had to prove that Mackey knowingly agreed to the conspiracy’s “unlawful purpose.”

The government had to prove that Mackey “knowingly agreed with member of the War Room to injure others ‘in the free exercise or enjoyment of’ the right to vote.”

BOOM: “The government presented no evidence at trial that Mackey’s tweets tricked anyone into failing properly to vote.”

The government did not show any messages from Mackey related to the scheme in Micro Chat and Madman #2. It would be impossible because Mackey did not belong to those groups at the time.

The government also did not present any messages from Mackey in War Room two weeks before he posted the memes.

The court noted that Mackey’s participation in these group messages declined in the weeks leading up to the 2016 election.

“He did not post any messages in the War Room in the two weeks before he tweeted the text-to-vote memes on November 1 and 2, 2016,” wrote the judges. “And he was not even a member of Micro Chat or Madman #2 from approximately October 5, 2016 through the election.”

This is important because members of those groups “exchanged memes or messages about encouraging potential Clinton voters to vote via social media or text” during that time.

When it happened in the War Room group, Mackey did not participate in the discussions.

The court also pointed out that the memes Mackey posted did not follow any of the instructions given in the War Room group.

Despite that, the government argued that Mackey just viewing messages in those groups, “he had express knowledge that an agreement had been formed.”

The court shot that down:

The instant case is more like Bufalino than Anderson. Here, the conduct at issue—posting text-to-vote memes similar to others circulating publicly online— does not in isolation show awareness of, much less knowing participation in, a conspiracy. The government does not contest that Mackey downloaded the memes from 4chan but argues that the inspiration to do so came from discussion in the War Room. This is possibly true. But the inference is speculative and the government relies largely on conjecture to rule out the alternative scenario: that Mackey’s conduct was independent of any knowledge of the War Room discussions. Mackey did not send any messages in the War Room in the two weeks before his text-to-vote tweets, despite having actively participated in the group in the past. Moreover, there were “over 600 messages coming in per day in the War Room” and only 12 posts related to the alleged conspiracy, two of which were sent within one minute of each other and the other 10 within a 20-minute period. Trial Tr. at 743–44.

To be sure, Mackey sent his first tweet on November 1, 2016, only a few days after the relevant October 29 and 30 War Room posts. But this was also days before the election, and the very time that the Clinton campaign, after having been aware of the memes for months, became sufficiently concerned about their online proliferation (which also made it more likely Mackey could have come across the memes independently) to “initiate[] its defensive response.” Gov’t Br. at 82. This is thus nothing like the “hardly coincidental” conduct in Anderson, where “common sense” and “corroborative testimony and circumstances” all supported an inference of conspiracy. 747 F.3d at 70–71. Nor does it even approach the sort of “suspicious circumstances” we have found insufficient to support a conspiracy conviction. E.g., Nusraty, 867 F.2d at 764 (concluding that meeting a known associate at the airport at the time he emerged from customs carrying a drug-laden suit which he attempted to deliver to the defendant was “not, by itself, an act from which knowing guilty involvement can reasonably be inferred”).

Mackey’s memes were nothing like the ones in War Room. The court acknowledged if they had been then it “would be some evidence of agreement.”

“The mere fact that Mackey and other War Room members often tweeted the same popular and trending hashtags provides little incremental support for the government’s theory,” stated the court.

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