Ricky Vaughn's Prosecution and the First Amendment

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Evelyn Hildebrand:  Welcome to The Federalist Society’s Teleforum conference call. This afternoon, March 17, we discuss “Ricky Vaughn’s Prosecution and the First Amendment.” My name is Evelyn Hildebrand, and I am an Associate Director of Practice Groups at The Federalist Society.

 

As always, please note that all expressions of opinion are those of the expert on today’s call.

 

Today, we are fortunate to have with us Professor Eugene Volokh, a Gary T. Schwartz Distinguished Professor of Law at UCLA School of Law. After our speaker gives his opening remarks, we will turn to you, the audience, for questions, so be thinking of those as we go along and have them in mind for when we get to that portion of the call. With that, thank you for being with us today. Professor Volokh, the floor is yours.

 

Eugene Volokh:  Thank you. Thanks very much for having me on. So this is -- what I’m about to say is based on an article that I wrote for Tablet Magazine about a month ago on an interesting prosecution. It could be the shape of things to come a little bit. And it raises an interesting broader First Amendment question.

 

Let me just start by reading the text of the meme that this prosecution is based on. I wish we were in video. Then, I could just show it to you, but this is mostly based on text. It has a picture of a smiling Hillary Clinton. This was in 2016 when Clinton was running for president.

 

And it says, “Vote for her. Vote from home. Post ‘Hillary’ using #presidentalelection. On November 8th, type the word ‘Hillary’ and post it at Twitter or Facebook using the hashtag #presidentialelection between 7:00 a.m. and 9:00 p.m. Eastern to cast your vote for Hillary from home. Stronger together. Hillaryclinton.com. Powered by Microsoft.”

 

So it seems very legit. It seems kind of well-produced. Of course, it’s nonsense. And for many people it’s kind of a -- it’s an absurdist joke, or it’s like a “Ha, ha, ha. Imagine somebody who’s foolish enough to fall for this joke,” because, of course, we all know you can’t vote by posting to Twitter or Facebook.

 

But there’s some reason to think that the person who made this, a man named Douglas Mackey who was using the online alias Ricky Vaughn—the nom de net, perhaps, Ricky Vaughn—was indeed trying to dupe at least some people, not of course everybody or even more than 1 percent, let’s say, of the people who saw this -- but some people into doing this instead of voting for Hillary Clinton. And if that happens -- and in a close election you can imagine if even a few people -- or let’s say a small percentage of people but a considerable number are duped by this into not voting the real way and supposedly voting this fake way, which doesn’t count, then that might sway a close election. And for this, Mackey is being prosecuted under federal law.

 

And this raises a couple of questions. One is is this sort of prosecution constitutional, or is the speech constitutionally protected by the First Amendment against such prosecution? After all, people often lie in political campaigns. Candidates do it, activists do it, political operatives do it. Can election lies simply be outlawed? So that’s the first question. Is this kind of meme protected by the First Amendment?

 

The second question is, even if it could be punished by a properly crafted statute, what about the statute under which he’s being prosecuted? I’ll get to -- shortly, I’ll get to the exact text of this statute. But is that statute a permissible basis for this prosecution?

 

Well, let me start with a bigger picture question because it’s in some respects more interesting. Can election lies be prohibited? Well, it turns out that the Supreme Court has never squarely resolved what one might say is the big picture question. When can the government punish lies? We know that some lies it can punish, libel -- so lies that damage somebody’s reputation -- sometimes even innocent mistakes but unreasonable mistakes that damage someone’s reputation. They’ve long been punishable.

 

And by the way, criminal libel is still constitutionally permissible. Let’s say criminal libel prosecutions. About a dozen states have criminal libel statutes. And if properly crafted, limited to lies that damage a person’s reputation, those statutes are constitutional. Likewise, perjury is constitutionally unprotected. So is fraud, including fraud that isn’t just commercial fraud.

 

Let’s look at charitable fundraising, for example. Charitable fundraising is generally viewed as fully protected by the First Amendment, not just as commercial speech, but the cases from the ‘70s and ‘80s that make clear that, because it’s intertwined with the speech of the charity in the pitch and also that will be funded by the raised funds, it’s fully protected speech. But fraudulent charitable fundraising can be punished. And it can indeed be criminalized.

 

On the other hand, in the case called U.S. v. Alvarez in 2012, the Supreme Court struck down the Stolen Valor Act, which banned lies about one’s military medals -- military awards. And the Court said, “Well, you can’t just punish a lie just because it’s a lie. There’s got to be some more specific, more tangible harm, whether harm to reputation or financial harm or possibly the kind of harm that happens if people impersonate government officials like police officers and the like.”

 

But just ordinary social lies like, “Oh, yes, I won the Medal of Honor,” which is what the person in that case, Alvarez, was prosecuted for, that cannot be criminalized. It was a split decision, by the way, 6-3 -- actually, 4-2-3, no clear majority opinion, which makes things more complicated. But there was a majority decision that at least some lies are constitutionally protected. All right.

 

What about the medium size question? Can the government punish lies in election campaigns? Well, it turns out that that the Supreme Court has never passed on. And it split lower courts. In 1985, an Ohio appellate court upheld an Ohio statute that criminalized lies -- and again, not just honest errors, but outright lies, knowingly false statements of fact in election campaigns. And in 2000, the Michigan Supreme Court held that lies by candidates for judicial office could be punished. There the rule didn’t involve criminal punishment, but they could be punished through other enforcement mechanisms that presumably would be criminally punishable as well.

 

On the other hand, a 2007 Washington Supreme Court decision struck down that state’s election lies statutes. And since then and since Alvarez, federal and state appellate courts have struck down the Ohio, Minnesota, and Massachusetts statutes. Now, all those cases focused on the specific details of those statutes, and, again, there’s a split among lower courts on the subject. But it’s fair to say that at least some judges are highly skeptical of the government’s ability to fairly adjudicate such cases.

 

To quote the Massachusetts case talking about the state’s election lies statute, “Such a statute may be manipulated easily into a tool for subverting its own justification, i.e. the fairness and freedom of the electoral process, through the chilling of core political speech. The distinction between fact and opinion is not always obvious, and even in cases involving seemingly obvious statements of political fact, distinguishing between truth and falsity may prove exceedingly difficult. Thus, in the election context as elsewhere, it’s apparent the ultimate good desired is better reached by free trade in ideas and by the competition of the market.”

 

Now, the Court says “in the election context, as elsewhere,” but, of course, in some elsewheres, like libel law, like the law of fraud, we do allow governmental policing of truth, suitably hedged through proper procedural rules, through various mens rea requirements and the like. But we don’t just say, “Oh, your reputation’s been damaged by somebody defaming you? Oh, well. You’ve got to rely on free trade in ideas and the competition of the market.” You can actually go to court and get damages against the person, or, again, in some states, the liar who damages your reputation can even be criminally prosecuted.

 

So the question is should something similar apply to elections generally? And courts, as I said, are split on this. But those are the high-level questions. What about lies? Are lies unprotected by the First Amendment? And the medium level question is what about election lies?

 

But what about the narrowest question? What about what I call lies about the mechanics of elections, details of the voting process, which risks misleading voters not about the qualities of a candidate or the costs and benefits of a ballot measure but about the who, where, when, and how of voting? Can one vote by text? What day is the election? When are the polls open? Where do I go? Who is eligible to vote? Those are very kind of -- potentially, at least, they can be pretty narrowly defined to set aside the really controversial questions. What did this candidate really do in this -- some controversial incident? Whom do you believe on the number of deaths from COVID or the number of deaths in some military action or whatever else? What exactly is the magnitude of the budget deficit if properly calculated? Those are very hard to figure out in many ways, very controversial.

 

But when do the polls open? What day is the election? Can you vote by text? That shouldn’t be terribly controversial. That’s something that can be defined pretty narrowly and can be enforced, I think, in a pretty consistent and honest and non chilling way. You can still say whatever you want about a candidate’s qualifications and the like. To the extent you’re chilled, you’ll only be chilled about statements about the mechanics of the election process. And there, it should be usually pretty clear whether what you’re saying is true—in which case, you’re free to do that—or false—in which case, you can be punished.

 

Indeed, in 2018 the Supreme Court offhandedly remarked, quote, “We do not doubt that the state may prohibit messages intended to mislead voters about voting requirements and procedures.” Now, that was the Court talking about government-controlled space inside voting locations. So there, the Court said -- this is a case that’s called Minnesota Voters Alliance v. Mansky. The Court said, “You can’t just ban political clothing and pins and hats and such at the voting booth because, even though you have a lot of power to restrict what’s said at the voting booth, ‘politica’l is just too vague a term, at least as it’s been enforced by Minnesota authorities.”

 

But the Court said, “At least in the voting booth, you could ban people saying, ‘Oh, no, no, no. This --’” not voting booth, but let’s say the voting area -- “’This place is closed, or this is for people who live in this area and not this other area,’” when that’s a lie and you’re sending people off on a wild goose chase. So the question is what about outside of the -- again, not the voting booth but the polling place? What about online, or what about on some billboard? Can the state prohibit messages intended to mislead voters about voting requirements and procedures in those places, too?

 

That’s something the Supreme Court hasn’t squarely decided. This having been said, I do think that this is something that probably could be punishable -- that, again, this is something that causes a pretty tangible harm and not to people’s pocketbooks, but to people’s ability to cast their vote as the law authorizes them to do. It interferes with an important process; kind of like perjury interferes with the justice system. This interferes with the voting process.

 

The point of an election is to gather information about what the voters really think. And if some voters are deceived into submitting that information in a legally and effective way, that’s a pretty serious harm to the process. And again, it should be narrowly definable and enforceable in a way that’s fair, unlikely to be viewpoint based, and unlikely to have much of a chilling effect.

 

Now, of course, there is a problem that this kind of law creates, and maybe it’s raised in a sense in the Mackey case itself. And that is that the law might chill satire, might chill jokes where people are sort of mockingly saying, “Oh, yeah. Republicans vote Tuesday. Democrats vote Wednesday.” I’ve heard people give that as an example of deception, but that’s such an obviously false thing that I think the great bulk of people who hear it or who see it will say, “Ha, ha, ha. Funny joke.” It’s not even a funny prank because it seems so unlikely to deceive anybody.

 

Likewise, maybe that’s what was going on in the Mackey case as well. Who knows? And you can imagine other kinds of situations where it’s even more clearly satire. But I don’t think that by itself should be a reason to protect even the outright lies. And of course, this is an issue that comes up in the libel context pretty often. Maybe not so much in perjury because people are very rarely acting satirically in court. Although, even in court I suppose if somebody says something sarcastically, they’re not going to be prosecuted for perjury precisely because, if it’s clear sarcasm, it’s not actually a lie.

 

So let me give you an example. There’s a case from libel law. There’s a 2004 Texas Supreme Court case called New Times Inc. v. Isaacks. There’s a backstory to it. There’d been a 13-year-old arrested and kept jailed for five days on a terroristic threats charge for writing a story about a school shooting. And that story was a response to a Halloween assignment at school from a teacher who had asked the children to write a scary story. So the guy said, “Oh, I’ll write a scary story about a school shooting.”

 

And in context, it was pretty clear that that was -- that no harm was intended. But law enforcement authorities came down on him like a ton of bricks. And, again, he’d been arrested and kept jailed for five days. So a local alt-weekly in response published an article that described the arrest and detention of, quote, a diminutive six-year-old, close quote, Cindy Bradley who was purportedly jailed for writing a book report about, quote, cannibalism, fanaticism, and disorderly conduct -- the book being Where the Wild Things Are. And adjacent to the article was a picture of a smiling child holding a stuffed animal, and there in the caption, quote, “Do they make handcuffs this small? Be afraid of this little girl.”

 

And the article ascribed these actions by name to the judge and the prosecutor in the original story of the 13-year-old who had been actually arrested. And then the allegations got still more ridiculous as the article went on. It’s a common structure for satire, right? You start out with something that seems legit, and then you sort of slowly kind of dial up the nonsense. “Cindy was placed in ankle shackles after authorities reviewed her disciplinary record, which included reprimands for spraying a boy with pineapple juice and sitting on her feet.”

 

So the judge and the prosecutor then sued this alt-weekly for libel saying, “They lied about us.” The trial in the intermediate appellate course allowed the case to go forward and even ordered the newspapers to pay the plaintiffs’ attorneys costs for the appeal. It took a further appeal to the Texas Supreme Court to get the case reversed unanimously.

 

So on one hand, the legal system does have tools to properly distinguish a lie from a joke. Though, on the other, it took years and doubtless a lot of money to get there with four judges, the trial judge and three intermediate appellate judges ruling one way and the nine Texas high court judges ruling the other. So that’s a sobering reminder of the danger posed even by laws that ostensibly target falsehoods.

 

So I do think that there’s reason to be concerned about such kind of laws. But I think there’s also reason to allow such laws if they are narrowly and specifically defined to deal with not lies in general or supposed lies about -- that are related to the election but knowingly false statements about the mechanics of voting -- again, about the who, what, where, when, and how of voting because those are particularly likely to be damaging to the political process and particularly likely to be enforceable in a way that has a minimum of chilling effect and a minimum of tendency to be enforced in a viewpoint-based way.

 

So that’s the constitutional question. And by the way, some states have such statutes. So for example, Missouri bans, quote, knowingly providing false information about election procedures for the purpose of preventing any person from going to the polls, close quote. Even those might need to be tightened up a bit, but I think that such statutes are possible. But returning to the actual Mackey prosecution, there is no such clear and narrow federal statute.

 

Instead, the statute under which Mackey’s being prosecuted bends all conspiracies, quote, to injury, oppress, threatened, or intimidate any person in the free exercise or enjoyment of any right or privilege secured to him by the constitution. Nothing there says it's limited to lies about mechanisms of election procedures. It’s not even obvious that deceiving someone into voting in an invalid way qualifies as injuring or oppressing.

 

I supposed you could argue it’s injuring in the way that frauds generally injury. But it’s not physical injury. It's not clear that would apply. But if it does cover deception, nothing in the text limits it to deception about mechanics of voting. Allegedly lies about the government or national security or the economy could also be prosecuted if the government thought they were intended to discourage people from voting and thus to injury or oppress them in the free exercise of the right to vote.

 

Now, some might applaud that on the theory the law should do more to punish political lies generally. But as I mentioned, many courts are understandably quite skeptical about giving to the prosecutors and judges and juries the power to police election speech that way. Nor could I find any precedent for such prosecutions under the statute. The closest analog, which the Justice Department wrote about in its Federal Prosecution of Election Offenses manual, is a case called U.S. v. Tobin where the government prosecuted a party official for a scheme to jam telephone lines for ride to the poll services offered by the opposing political party and by the Manchester Professional Firefighters Association. So the theory was that the defendant didn’t want the other side’s voters to show up. Some of the voters would only show up if they got these free rides to the polls. So in order to block the rides to the polls, he jammed the telephone lines.

 

And a federal trail judge held that this federal statute that I was quoting about this being applied to Mackey covers such conduct. But Tobin was acquitted by the jury, so there was no opportunity for an appellate court to consider legal question. All we’ve got is this trial court opinion. No other court, to my knowledge, has considered the issues since. The Tobin decision didn’t even consider a First Amendment argument since the government was prosecuting Tobin for conduct, jamming lines, rather than from the content of his speech.

 

So it's not a great precedent for what the government’s doing in the Mackey case. But to the extent it is a precedent, the breadth of the indictment is quite disquieting here. So for instance, urging the Manchester Professional Firefighters Association from Tobin to shut down it’s get out to the vote effort, no threats, no incitement of violence, just advocacy -- would be protected by the First Amendment.

 

But under the trail court’s reasoning, which is that this federal statute bans conspiracies with a specific intent to impede or prevent qualified persons from exercising the right to vote, that sort of advocacy would in fact be a crime because there, too, this hypothetical defendant would be trying to prevent people from voting by encouraging their rides to stay home and not give them free lifts. Likewise, picketing outside a party’s headquarters urging party activists not to show up for the get out to vote effort, maybe arguing the party’s candidate has recently been shown to be crook or a racist or whatever else, that would be a crime, too. What’s more, the statute isn’t limited to protecting the right to vote.

 

It applies to any constitutional right. So say people try to prevent a public speech at a local university by urging university employees to cancel it, which itself would be constitutionally protected urging. I mean, I think it may be bad, but it would be constitutionally protected. But that, too, would be a conspiracy with a specific intent to impede or prevent qualified persons from exercising their First Amendment rights to speech or the right to listen.

 

So I think if the statute does cover Mackey’s speech, then I think it’s constitutionally overbroad because it’s not limited to unprotected -- this narrow zone of unprotected speech. I think a properly crafted statute -- again, targeted at knowing falsehoods about the mechanisms of voting, that kind of statute I think would indeed be permissible. I just think that the federal statute 18 U.S.C. Section 241 under which Mackey is being actually prosecuted right now is not one such statute.

 

So that’s my take on the situation, and I think we have plenty of time for conversation. So I’d love to hear questions or comments or anything else.

 

Evelyn Hildebrand:  Wonderful. Thank you so much. We will now go to audience questions, and at this point we’ll move to our first caller in the queue.

 

Bob Fitzpatrick:  Hi. Bob Fitzpatrick here in D.C. Can’t help but ask the obvious question that comes to mind. Let’s assume Washington, D.C. passes a statute that says -- criminalizes or makes it a civil offense to lie about a past election. And within the jurisdiction but outside of the halls of Congress, Josh Hawley or the Donald makes an appearance in D.C. and says, “In X, Y, Z states, I was --” President Trump was defrauded, cheated. There were conspiracies -- all the stuff he and his people have been saying. Can that be criminalized or made a civil offense?

 

Eugene Volokh:  So I think the answer’s pretty clearly no. And the Supreme Court has dealt with not exactly that but something close to it both in Alvarez and, as it happens, in New York Times v. Sullivan. So in Alvarez, five justices, the three dissenters, who are Justice Alito, Scalia, and Thomas, and the two justices in concurrence, who are Breyer and Kagan, specifically said that, of course, the First Amendment does not allow laws restricting false statement about philosophy, religion, history, the social sciences, the arts and the like because those laws are especially likely to be enforced in dangerous ways and to create too much of chilling effect. To quote the dissent, “The point is not that there’s no such thing as truth or falsity in these areas but rather that it is perilous to permit the state to be the arbiter of truth.”

 

And that’s five of the justices, but I’m sure that the plurality -- the four justices in the plurality, who are, if anything, even more protective of speech, would have agreed that those kinds of statements about general matters are likely to be fully constitutionally protected. And that’s even if they’re lies. Again, you just don’t want prosecutors, judges, and juries to be deciding that.

 

And what’s more, in the New York Times v. Sullivan, which is remembered mostly for saying that you can’t -- that public officials can’t get -- can’t recover damages in a libel lawsuit without a showing that the statements were lies and not just honest mistakes, also said that the government can’t sue for liable and that’s regardless of the mental state of the speaker. So lies about the government—impersonal lies, not about a particular person but about the government generally—are categorically protected. So I think between those things I think essentially conspiracy theories that are impersonal, whether it is the election was stolen or there was a conspiracy to assassinate President Kennedy or whatever else --

 

Bob Fitzpatrick:  Well, let me --

 

Eugene Volokh:  -- are fully constitutionally protected unless they are personalized. So if somebody says, “Oh, yes, the 2020 election was stolen, and it was stolen by the Georgia Secretary of State,” then he could sue for libel. And maybe even there could be a criminal prosecution for criminal libel if there’s a criminal libel statute. But absent that kind of personalization, no, I think these kinds of general assertions are going to be constitutionally protected.

 

Bob Fitzpatrick:  Well, that takes me to -- and I think you’ve just answered it. But let me ask it anyways -- the second question, and that is real world Attorney Powell and others—I forget who the others—have been sued by this voting machine company. I forget the name of it -- that she specifically said had hatched some plot in Venezuela I think or something like that. And the machines were designed to miscount the electronic vote. And she has been sued, I assume, for libel and a bunch of other offenses. I assume under the answer you just gave that, because it is a specific statement and apparently a misstatement—no evidence has come forward that I’m aware of that supports Powell’s assertion of this—I assume that is not constitutionally protectable speech?

 

Eugene Volokh:  Right. It’s libel if it’s false and if it’s knowingly false. I haven’t followed the details of that conspiracy. Life is too short to track down the factual assertions in all of these. But that’s a familiar claim.

 

The only thing that’s a little unusual about it is it’s brought by a company and not by an individual. But it’s long been established that a corporation could indeed bring a libel lawsuit. A government can’t, but a corporation could. So yes, in principle, libel prosecutions and certainly in practice libel lawsuits are authorized so long as this is -- the damage is to the reputation of a particular person.

 

The controversy in the Mackey case is what if there isn’t a specific particularized damage to the reputation of a particular person but rather kind of a more diffused fraud, although not financial fraud, on a whole bunch of voters? And I think the answer is, if the fraud is about something kind of very kind of clearly definable and usually very easily ascertainable—the mechanics of voting and how you vote or when you vote or where you vote—that there that kind of fraud should be punishable just like financial frauds are, even though broader lies about elections might not be.

 

Bob Fitzpatrick:  Thanks.

 

Evelyn Hildebrand:  Great. Thank you. At this point, we will move along to our next caller.

 

Caller 2:  Professor, I was wondering if there’s a statute of limitations problem here. Mackey put these posts on his Facebook page in September of 2016. In January of 2021, Biden becomes president. Six days after this new acting attorney general is appointed in Brooklyn, a charge is brought. And he’s down in West Palm Beach, I believe. He gets arrested down at West Palm Beach. I couldn’t figure out what the statute of limitations was and whether or not it would apply in this case and whether or not the fact that this appears to be a political prosecution is going to come into the overall resolution of the case.

 

Eugene Volokh:  You know, it’s a good question. I don’t know the answer to it. Presumably, there is some answer to it, and my guess is the prosecutors would have looked into this. My sense is that, for many federal crimes, the statute of limitations is long enough to make it punishable. So I can’t answer the question, but it certainly doesn’t surprise me that a prosecution might be brought some years -- in this case, I think a little more than four years after the act.

 

Now, also my understanding is that Mackey wasn’t identified as the person doing this until a few years after he did it. He had hid his identity well enough for awhile. And as to politically motivated, you know, I appreciate the concern, but it’s a concern that I think is potentially present with all prosecutions for political crimes.

 

Imagine bribery. I do think people should be prosecuted for bribery, for either offering bribes or especially accepting bribes when political officials are involved. Is there a risk that this is going to be prosecuted in a politically motivated way with prosecutor’s office turning a blind eye to its buddies and going hard after people who are on the other side? Sure. That’s human nature.

 

What’s more, it’s also human nature even for decent, well intentioned public servants to think the worst of people on the other side of the aisle and give the benefit of the doubt to people on their side. So if it’s somebody on your side who does something you say, “Oh, what a funny joke.” The other side, “Oh, fraud, fraud, fraud.” Right? That’s also human nature to do that.

 

This having been said, I don’t think we can resolve this by saying, well, anytime there’s any kind of political dimension to criminal conduct it can’t be prosecuted because of a fear that it’ll be a politicized prosecution. What I do think we could demand, though, is that the statutes that are involved be crafted in a pretty precise way so that it’ll be a lot clearer what is punished and what is not in part because that way it’ll be more likely that it’ll be enforced in an even-handed way without, again, this tendency that there’s a vague statute to read the vagueness in a way that harms the other side and helps yours. So I’m not that troubled by this is being done by a Democratic administration.

 

And you could also wonder, well, maybe it should have been done by the Trump administration. You could maybe fault the Trump administration for not prosecuting him once they’d uncover this the way you might fault the Biden administration for prosecuting him. But I would say to me the main problem isn’t that this is political because enforcement of all these things, there’ll always be some accusation that it’s political. To me, the real problem is that the statute is written in such a vague and broad way that I don’t think that it’s constitutionally applicable to this kind of situation.

 

Caller 2:  Thank you.

 

Evelyn Hildebrand:  Great. Thank you. At this point, I will hand the floor over to our next caller.

 

Caller 3:  Yeah. So I’m like the last caller, so I went and googled statute of limitations because I was curious myself. It sounded like a really good argument. Best I could find here is a five-year statute on fraud for federal offenses. And then I got into some fuzzy areas here that I haven’t been able to finalize, obviously, where they talk about the statute of limitations on speech, free speech or what they say federal rights violations, 42 U.S.C. 1983. And then, they don’t give a good answer here as far as I can tell in my limited research here, so it’s an interesting question.

 

I also think there might be some mootness issues, maybe. And I guess that’s my question being that it was two elections back, depending on how you look at it. But then you’d say, well, is it capable of repetition? So in other words, do you think the defendant here could fight it on mootness grounds?

 

Eugene Volokh:  No. That I’m pretty confident about. Mootness is a defense in injunction cases. So if I’m trying to stop someone from doing something bad in the future and that thing has vanished away -- that possibility has vanished away, then the case may be moot.

 

So one possibility is let’s say I’m bringing a lawsuit against the government, and the statute that I’m challenging is repealed. Maybe that claim is moot because I can’t get a functional injunction anymore. There’s nothing to enjoin.

 

But for criminal prosecutions, there is no such defense, right, because criminal prosecutions is backward looking. It is saying you did something bad. Now, it’s true that the reasons for it are in part forward looking because we want to prevent bad things in the future.

 

But so? There are going to be elections in the future, right? Maybe Mackey might do something else bad in future elections. What’s more, there’s general deterrence. We want to deter other people from doing such things in other elections on behalf of other candidates or opposed to other candidates. So I don’t think there’s any real mootness issue here.

 

I will say I did a quick glance, and it looks like in these five years is the general statute of limitations in federal cases, like the default one. And if that’s so, then five years would be -- five years have not yet elapsed from -- they’ve almost elapsed but haven’t actually elapsed since Mackey’s conduct.

 

Caller 3:  When the conduct was discovered, I guess, too. All right. Great.

 

Eugene Volokh:  Well, right. I mean, there’s always the question in statute of limitations cases to what extent you count it from the event versus discovery. Something has to do, I’m told -- I’m not an expert in statute of limitations -- but has to do with whether somebody tried to conceal his identity and when it should have been uncovered. Interesting questions but actually we try to avoid those questions by just -- by prosecuting -- we -- that’s to say prosecutors try to avoid those questions by prosecuting in a way that’s clearly within the time.

 

And again, my understanding is that this would be governed by the five year one. So I think it’s 18 U.S.C. 3282, which I believe says that, unless otherwise specified -- expressed -- excuse me, except as otherwise expressly provided by law, no person shall be prosecuted unless the indictment is found within five years after such offense shall have been committed. So as a general matter, it’s based on the date of commission, but then it’s five years. And five years have not yet elapsed.

 

Caller 3:  3282 is what I found, too. Great. Thank you.

 

Evelyn Hildebrand:  Great. Thank you. I’ll now hand the floor over to our next caller. Go ahead.

 

Caller 4:  Thank you very much for this presentation. I have two questions. I’m not sure the first one’s really wholly relevant. But at what point do we hold people accountable to be able to tell the difference between a tweet that’s whatever it is and not -- and that we stop building more federal crimes or federal issues over stuff that’s really babying adults.

 

And the second question has to do a little bit with the political discussion a few calls back that I don’t think either of you were saying this, but at some point, whether you’re prosecuting the other side or not, my hope always is that someone who had that discretion will do what is ethically right and bring the case period. Is there any chance here is they’re doing these kinds of prosecutions that there’s an ethics problem for simply focusing and making it political?

 

Eugene Volokh:  Well, so let me turn to these questions in turn. So it’s true that we’d like everybody to be suitably skeptical, especially when only a little bit of thinking leads you to realize what’s going on. And if somebody offers you $15 million from Nigeria if you only pay them $5,000 to help wire the money, you should realize, wait a minute, that’s a scam. But if you do fall prey to this scam, while some of us might cluck our tongues—you know, you really shouldn’t have done that— it’s at the very least legitimate for the prosecutor to say you may have been foolish but the other person is a fraudster, and he should be prosecuted and that the fact that this was an error on the victim’s part doesn’t make it less of  a crime on the perpetrator’s part.

 

Now, of course, this doesn’t involve money. But at the same time, it does involve something pretty valuable -- and not just valuable to the people being defrauded but valuable to society. And that is it’s valuable for us in an election to figure out what it is that the voters actually want. And if voters are being deceived into casting a vote in a way that’s going to be legally invalid, that undermines the results of the election.

 

So I think that the concern here is that even if 99 percent of the people would have seen right through this, if even 1 percent of the people are duped this way in a close election, this could make a big difference. And that effects all of us and not just the people who’ve thrown away their votes this way. Now, this having been said, I do appreciate that part of the problem is, if you are concerned about 1 percent being duped, then you might have a situation where even an obvious joke might fool some people.

 

And these issues sometimes come up, I think, sometimes in trademark cases where there’s a trademark parody and most people would see through and some people won’t. And generally courts do require that this be -- that in a case where it looks like a parody that it be protected unless it’s just so opaque that pretty much everybody gets deceived. But I don’t see anything really that parodic about this particular meme. So I just don’t think that that kind of defense should apply here.

 

As to the political point, well, so the question is shouldn’t these prosecutors be held ethically accountable for politicizing this? But I’m not sure that they’re politicizing it. Their view is this person is trying to defraud voters or -- not is, was trying to defraud voters. And they think it’s a crime.

 

Now, maybe that statute, again, is too broad and too vague to be applicable here. But I don’t think that they are sort of clearly dishonest in thinking that this statute could be read this way. There is a precedent, as I mentioned, that does point in some measure in that direction. And it’s been in this manual that the Justice Department has been distributing for years now. It’s not just some invention of the new administration.

 

So they think that what they’re doing is just going after somebody who’s lying in a way that was trying to deceive voters. And I think as a matter of general principle that’s something that prosecutors could ethically do. Now, how we structure the statutes to minimize the risk of abuse I think is a serious and important question, but I’m not going to just assume that the prosecutors are acting unethically here. I just don’t see any basis for that.

 

Caller 4:  And actually, I wasn’t -- I should have clarified. It wasn’t really -- it was more a general comment about things on free speech and the politicizing speech. For example, whatever happened, regardless of what anyone thinks of the impeachment trials, what does that speech constitute. And it was more a general comment, but I do understand what you’re saying. And I agree. And I think it goes to the intent of the person and what they were intending to do. Were they intending to defraud, or were they trying to be funny? And it just wasn’t funny. And it made people think it was serious. So that goes to the intent of the person, right?

 

Eugene Volokh:  I’m a little hesitant when people talk about something politicizing, or another term I hear a lot about is weaponizing.

 

Caller 4:  Yes.

 

Eugene Volokh:  I think a lot of times what’s lurking underneath these assertions is simply that one doesn’t agree with a particular legal theory that the person is advancing. So if -- to me, the question is less are they trying to politicize, say, a persecution in a free speech case and more is the persecution justified under the law and under the First Amendment. So if certain kinds of speech is illegal and is constitutionally unprotected, then it makes sense that people be prosecuted for it, unless it’s the sort of thing that’s perfectly clear that nobody is ever prosecuted for and that this person is just being singled out because of his politics.

 

But in a general matter, the question is what is the constitutional basis here. What is the statutory basis? And if they’re adequate, then prosecutors should go after it.

 

Caller 4:  Thank you.

 

Evelyn Hildebrand:  Wonderful. Thank you. We’ll now move to our next caller.

 

David Emerson:  Professor, it’s David Emerson at The Federalist Society chapter up here in Berkley. Thanks for your comments. A couple of questions I’d like to get your reaction on. One is I’m looking at this statute on Google. It seems like it was enacted back in 1948. And I’m scratching my head about wondering -- and I’m agreeing with you that it’s incredibly vague and broad -- but why it has still on the books today and it hasn’t really suffered from kind of a facial challenge rather than as applied challenge in this case.

 

And then, assuming we want the statute to remain -- or some nature of this crime to remain on the books, do you have any thoughts on how to avoid a profusion of very much spot specific statutes which just address conspiracies and individual cases, and it becomes just sort of a nightmare legislatively to maintain those and make sure that they’re broad enough to cover all of the ingenious ways that people can commit crimes?

 

Eugene Volokh:  That’s a great question, and this is the tension that often arises in a lot of these situations, right? On one hand, you don’t want to have vague and general statutes, which may be subject to being enforced in different ways depending on people’s politics, which may be hard for people to predict or try to figure out if the law applies here. But then if you have very specific statutes, then there are going to be a lot more of them. And they’re going to be harder for people to figure out because there’s so many but also easy for people to avoid sometimes if they’re written too specifically.

 

I tend to, though, prefer, especially when it gets to criminal statutes -- but even in civil statutes -- to have more specificity and more clarity. I don’t think that Section 241 is on its face over broad in part because it doesn’t on its face seem to regulate speech. And the overbreadth doctrine generally only applies to speech restrictions.

 

The statute says in relevant part that it’s a crime to conspire to injury, oppress, threaten, or intimidate any person in the free exercise of any right or privilege secured by the Constitution or laws of the United States. So threaten or intimidate, those are, I think, pretty well defined. They should be like true threats such as, “If you go into that church, we’ll kill you” or “if you express these views, we’ll kill you” or “if you get an abortion, we’ll kill you.” Well, that should be punishable, and I’m not sure we need a law that’s narrower than that.

 

Injury, if you view that as physical injury or injury to property, I think then it could be quite sensible and quite sensibly written with that level of breadth. Oppress I don’t like just because what does “oppress” mean? It’s not a legal term of art. So the crime also covers injury, oppression, threats, or intimidation because of his having so exercised a constitutional right.

 

Well, let’s say that somebody says something, and people start tweeting mean things about him. Is that oppressing him? He feels oppressed because it’s so distressing. Maybe but that just shows how broad “oppress” is. So I do think that oppress should be thrown out.

 

But more importantly, I think the statute would be constitutional if applied physical injury or physical property damage or true threats, which are constitutionally unprotected speech. The problem here I think is that they’re trying to  use Section 241 as a speech restriction, as a way of going after false speech. And there, I think that’s -- it’s just too broad for that.

 

Another way of thinking about it is imagine that somebody libel somebody. You know, libel can be seen as an injury. Libel can be seen as oppression. Imagine somebody is libeled because of what he says. He makes a political statement, and people accuse him of things he didn’t commit because of his political opinion -- because they were trying to get back at him. Have we now just kind of -- has the Section 241 recreate several criminal libel statute—or create for this first time. Federal law has never recognized criminal libel—on the theory that libels are injury an oppression? You know, I think that that’s just another example of how when applied to speech Section 241 was likely to be too broad.

 

So then the question is, if we instead of having these broad and vague statutes and have something really precise, is that going to be too easy to evade? We’re going to create kind of too large a criminal code. Maybe. I appreciate that. I just think it’s better than the alternative.

 

You could imagine a law that says it shall be a crime to engage in unfair election practices. Well, that’s harder to evade. That’s easy to read. It’s just one sentence. But it’s just way too vague and thus more likely subject to viewpoint discriminatory enforcement and more likely to have an impermissibly large chilling effect. So I would prefer when it comes to speech restrictions to have them be more on the precise side.

 

David Emerson:  Thank you, sir.

 

Evelyn Hildebrand:  Wonderful. Thank you. And I apologize, at this point we’ll just move quickly to our last caller before we wrap up as the hour is approaching.

 

Caller 6:  Yes, thanks very much. Really appreciated Professor Volokh’s presentation and discussion. Two, I guess, quick questions. First, I’d be interested in Professor Volokh’s response to -- he earlier characterized the intent of voting as a desire to discern the will of the people. And I wonder perhaps what his reaction might be to recharacterizing that as discerning the will of the people who are willing to go through the processes necessary to express that will.

 

He’s probably well aware that when voting first manifested itself in the modern era it was usually open outcry voting. So the idea of the secret ballot was even considered an anathema. If one had strong enough opinions to voice them, then one was expected to be willing to do so publicly.

 

But I think more pointedly—this is the second issue—I heard him in a panel discussing the application of strict scrutiny balancing as part of modern First Amendment jurisprudence. And I wondered to what extent this is a prime example of where two constitutional virtues are coming into conflict with one another in the context of the First Amendment, maybe arguably both grounded in the First Amendment, and whether or not balancing is an appropriate tool to analysis them? I do recall some critique of balancing as a rubric to evaluate that. And then perhaps what the outcome might be and the extent to which it forces a court to try to divine the intent of the speaker in these situations.

 

Eugene Volokh:  Sure. So let me try to answer these questions in turn. First, I do think the purpose of voting from the societal perspective—not necessarily from any particular voter’s perspective—is to try to figure out what the majority of the people want. Now, of course, some of them are going to say, “We’re not voting.” Okay. Fine. We can’t figure out what you want.

 

But if they do want to vote, then we’d like to figure out what they want with some level of precision. And one advantage -- one reason we’ve shifted to secret ballot is precisely that a secret ballot better measures what people actually believe than an open ballot because they will be less likely to be bribed or intimidated. Likewise, why is it that we try to make voting more convenient in various ways.

 

Now, sometimes you say, “Well, we shouldn’t make it more convenient in some way because it’s more likely to facilitate fraud.” Fine. I understand. Making voting more convenient is not the only thing we’re looking for. But at the same time, if all else is equal, it’s generally better. If we were to have, let’s say, more polling places that are closer to people and if we think that somebody has to drive very, very far to get to a polling place, maybe we should have a closer polling place because we want to figure out what people want.

 

And to the extent that people are messing with that by deceiving people into going to the wrong polling place or voting at the wrong time or through the wrong mechanism, then that’s interfering with this process of determining the will of the people, just like lies in a courtroom interfere with the process of determining the truth or sometimes not even determining the truth. You could imagine, for example, lies in a sentencing hearing where it’s not a matter of what’s a truth of how much this person should be sentenced to but rather -- well, there the question is what’s the truth about how he was raised or whether he is remorseful or whatever else. And all of those things you could have perjury prosecution for because it interferes with this important government process.

 

Now, as to balancing, I’m not fond of balancing for many reasons. One of which is what does it mean to balance free speech against something else -- against public safety? When we talk about balancing but not the metaphor but the real thing on a scale, it’s because we have a force that we can use to do the balancing. And that’s gravity, right? Because gravity operates the same way on something on the left side of the balance as on the right side of the balance. We can figure out which was being pulled down more. So that’s easy enough with the scale.

 

But when we’re talking about free speech versus public safety or free speech versus election integrity or whatever else, you have two things that are incommensurate. There’s no real way of balancing that. So I would envision it less as balancing and more about whether there’s some reason to think that this speech is particularly likely to be low value according to whatever calculus of value you might have and particularly likely that we could determine whether it’s low value without too much risk of viewpoint discrimination, of subjectivity and such.

 

And I do think that the Court got it right when it said in Gertz v. Robert Welch that there’s no constitutional value in false statements of fact. There are times we have to protect them, but we should do that with some regret. And we shouldn’t do it more than we need to. And especially when those false statements of fact are about something that’s very precisely determinable like when and how you vote, I think that’s something that we don’t need to protect, especially when they also cause harm to this important governmental process. So that’s the way that I would handle these kinds of things if there’s a properly crafted statute. It’s just I think in this case there isn’t.

 

Evelyn Hildebrand:  Fantastic. Thank you so much. I would just hand the floor over to you for a brief final comment before we close out since we’re at the hour.

 

Eugene Volokh:  Thank you very much for having me. It’s always a great pleasure to talk about such things.

 

Evelyn Hildebrand:  Wonderful. Thank you so much. On behalf of The Federalist Society, I want to thank our expert today for the benefit of his valuable time and expertise, and I want to thank our audience for calling in and participating with your great questions. We welcome listener feedback by email at [email protected]. As always, keep an eye on our website and your emails for announcements about upcoming teleforum calls and virtual events. Thank you all for joining us today. We are adjourned.

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.