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If Memes Are Illegal, All Speech Will Become Illegal

meme about texting a Hillary Clinton vote
Image Credit@TheRickyVaughn/Twitter

The Biden administration has convicted a pro-Trump influencer for posting a meme. If this precedent stands, soon everything will be against the law, but the law will only apply to enemies of the state.

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Thirty years ago, the incendiary columnist Sam Francis coined the term “anarcho-tyranny” to describe a state of affairs in which the government cannot or will not enforce laws against serious criminals and instead exerts excessive and often arbitrary force on ordinary citizens.

Francis’s coinage, conceived against the backdrop of the crack epidemic and attendant crime wave of the late ’80s and early ’90s, was provoked by a series of feckless gun laws ostensibly designed to curb armed crime. But in practice, they were used to harass ordinary gun owners. The original column appeared in December 1992, a few months after an off-the-grid Vietnam vet was entrapped by an undercover ATF agent for the illegal sale of a shotgun, leading to a raid on his cabin in Ruby Ridge, Idaho, and the murder of his dog, son, and wife by federal agents.

Anarcho-tyranny is not an intentional conspiracy to subvert the rule of law. There are no smoke-filled rooms where the anarcho-tyranny white paper is passed around among policymakers. It is simply the natural devolution of a government undergoing a crisis of authority: As power slackens in one direction, it must tighten in another.

After a two-decade respite, the days of anarcho-tyranny have returned, perhaps more explicitly than ever. Since at least 2016, leftist DAs around the country have made it their explicit aim to decriminalize every offense short of murder (and sometimes that, too) and empty the prisons of even the most dangerous felons. Violent crime is once again a mainstay of big-city life. Drug addicts and psychopaths haunt the subways. Flagrant theft is forcing businesses to shutter and lock away their goods behind walls of plexiglass. In San Francisco alone, roughly 2,000 car break-ins are committed per month — with a less than 1 percent arrest rate. The George Floyd riots of 2020 amassed upward of $2 billion in damage, while its perpetrators were rewarded with tens of millions in exculpatory payouts.

The state, which is currently controlled by a party whose political clients are the agents of this disorder, has responded by cracking down on anyone who tries to intervene (murder charges brought against Kyle Rittenhouse, Jacob Gardner, and Daniel Penny demonstrate the point) and has mercilessly prosecuted red Americans who have responded in kind (compare the millions in payouts for Black Lives Matter rioters to the excessive sentencing of Jan. 6 defendants for example). Even more insidiously, the state, in the absence of neutral enforcement of the laws as they exist, is employing an expansive reading of civil rights law to punish their political enemies and flex their tyrannical authority.

Currently, the Department of Education’s Office of Civil Rights is investigating conservative activist Christ Rufo for refusing to play the pronoun game with his colleagues at the New College in Florida. Elon Musk, whose purchase of Twitter and subsequent release of a trove of internal documents exposed the hand-in-glove relationship between the federal government and (former) Twitter executives to suppress conservative speech, now faces a civil rights lawsuit for the crime of not hiring refugees to work at SpaceX.

These targeted prosecutions are scandals in their own right, but they pale in comparison to the treatment of Douglass Mackey, whose recent conviction is the canary in the coal mine for what’s coming down the pike.

Douglass Mackey’s Memes

Mackey, the man behind the now-defunct Twitter persona Ricky Vaughn, was convicted on March 31 of this year of “conspiracy against rights” in violation of 18 U.S.C. § 241, a Reconstruction Era law designed to counteract the violent voter suppression tactics of the Ku Klux Klan. In October, Mackey was sentenced to seven months in federal prison.

Mackey’s alleged conspiracy? Posting a joke meme on Twitter.

Really. See for yourself.

The offending tweet features an image of a mock political flier, which, according to federal prosecutors, was aimed at deceiving Hillary Clinton voters with the text, “Avoid the line. Vote from home. Text ‘Hillary’ to 59925.” Another tweet, also named in the suit, instructs readers to cast their vote by posting the word “Hillary” to Facebook and Twitter alongside the hashtag #PresidentialElection.

It’s a mildly provocative troll, a wry jab at the absurdity of get-out-the-vote efforts, which target the most civically illiterate members of the public. But never mind whether the joke is good or bad, it is obviously a joke, obvious enough that posters far less clever than Mackey have made it before. Kristina Wong, a semi-prominent Twitter Democrat, posted a nearly identical tweet during the same election cycle encouraging her fellow “Chinese Americans for Trump and people of color for Trump” to vote on “Super Wednesday,” adding, “TEXT in your vote! Text votes are legit.”

Fair play, in other words. Jokes, trolls, accusations, deceptions, outright lies of the most salacious, malicious, and truly deplorable nature are all part of the daily maelstrom of political informational warfare. You may find this kind of partisan mud-slinging degrading, even regrettable, but the grand spectacle of American democracy has always been this way. We take the good with the bad, the funny with the cringe. If you want something different, a system of laws and norms that promises a little more dignity, well… that’s another conversation for another time. For now, this is the game we’re all playing, and the rules, enshrined by the First Amendment, are the rules.

Or so we thought. If you are a Trump supporter like Mackey, rather than an obedient party apparatchik like Wong, the rules no longer apply. When, as Mackey’s case demonstrates, the state can expand the purview of a law meant to thwart acts of Klan violence to include online “disinformation,” it can render almost any action illegal. Every utterance, to the extent it has a political valence, is a potential crime. Everything is against the law, but the law only applies to the state’s political enemies.

If this is an exaggeration, it is so only barely.

Here are some more facts that provide a fuller picture of the circumstances of Mackey’s alleged crime and their implications. Mackey’s meme first appeared on Twitter on Nov. 1, 2016. It wasn’t until January 2021, two days after the inauguration of Joe Biden, that charges were filed. Despite Mackey living in Florida, the DOJ used a dubious legal reading to have the case tried in the hostile Eastern District of New York, under the auspices of newly appointed U.S. Attorney Breon Peace, in front of a Democrat activist judge who in 2017 issued an emergency stay to block Trump’s executive order on refugee resettlements, and in front of a Brooklyn jury pool that voted 4 to 1 in favor of Joe Biden.

The most astonishing fact is that the case was brought in the absence of any victim. According to the Justice Department, 4,900 people texted the fake number in the tweet. Out of these, the Justice Department found not a single person who claimed to have been deceived by the meme or who thought that texting “Hillary” to 59925 constituted a valid vote.

Mackey’s real crime, his real sin, was being an effective right-wing provocateur. According to an analysis from MIT Media Labs, Mackey’s Twitter account, @TheRickyVaughn, with a little over 50,000 followers at the time of the election, was one of the most influential social media accounts in the country, ranking higher than NBC News and prominent Democrat mouthpieces like Stephen Colbert.

Mackey’s prolific output and acerbic wit, his unique ability to proselytize the ideological foundations of Trumpism with native digital fluency, is what made him a target. It is also true that Mackey could be blatantly offensive, but the need to protect offensive speech only underscores the principles of free expression at stake. Ultimately, he represented the breakup of the informational monopoly held by the state’s preferred opinion makers, and that is why he was prosecuted. The candidacy of Donald Trump, a sui generis figure in a hundred different ways, and whose own subsequent legal entanglements operate from the same logic of excessive prosecutorial zeal, was animated, at least in part, by the unconstrained energy of online troublemakers like Mackey.

And like Trump, Mackey had to be held to account for exposing these vulnerabilities in the system. Again, where power slackens in one direction (losing control of the electorate), it must tighten in another (stringing up meme makers). The likeness here isn’t merely symbolic. Remember 18 U.S.C. § 241? This same law, which according to legal scholar Eugene Volokh has never been used to prosecute a speech act, is precisely the law federal prosecutor Jack Smith is relying on to indict Trump. Douglass Mackey’s case isn’t a standalone act of prosecutorial aggression; it is the foundation for a new legal regime that intends to cast a net over the entire ocean of online speech.

Broadening the Law’s Scope

The precedent set in the Mackey case eschews any limiting principle on how the law can be applied. Any “disinformation” — that is, any untrue statement, even crude jokes, like jesting that Michelle Obama is a man, or that [insert politician] is really an alien lizard in a human skinsuit — so long as it might deter someone from voting, is a potential crime. Even the mild suggestion that voting is irrational, a belief long held by many mainstream political scientists, could count as a criminal act under this reading of Section 241. This broadening of scope is precisely the point.

In his 1964 book The Morality of Law, legal theorist Lon L. Fuller tells the parable of King Rex, an ambitious though naive ruler who attempts to reform his kingdom’s legal system from the ground up. First, his legal code is too narrow, then too broad, too abstruse, then too plain. His subjects’ dissatisfaction mounts, until the king realizes that by making his laws impossible to obey, he can bring his enemies to heel whenever he chooses.

“It was made a crime, punishable by 10 years’ imprisonment, to cough, sneeze, hiccough, faint or fall down in the presence of the king,” Fuller writes. In other words, there was no law, only the king’s discretion concerning who deserved punishment or mercy.

The 17th-century polemicist Leveler “Free Born” John Lilburne called such a state of affairs a “lawless unlimited power.” It eventually led to a revolution. We’re not there yet, but when one of our fellow citizens faces federal prison time for a joke, we are forgiven for being reminded of dear King Rex.

In the coming year, we will be treated to a warmed-over buffet of sermons by our intellectual betters on the sanctity of Our Democracy™. We will be relentlessly hounded to check under our beds and in our closets for purveyors of “disinformation.” While the streets are overrun with another round of election year “mostly peaceful protests,” the border is swamped by a deluge of illegal immigrants, and our major metros are ravaged by wanton criminality, we will do well to consider what we stand for, and where we will draw the line­.


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