April 11, 2023
Dave: “Let’s talk about Doug Mackey, the guy convicted of posting memes!”
Readers: “Oh crap, I bet Dave’s gonna be contrarian and scolding, like a broken fucking record.”
Dear readers, you shouldn’t cuss so much.
That said, maybe I am becoming a tad predictable. So before I started writing this column, I reached out to my go-to guy on matters of law: constitutional scholar Eugene Volokh, who’s always been most generous with his time whenever I’ve needed a consult (check out his blog; it’s the best of its kind).
To start, here’s Tucker Carlson’s spin on the Mackey conviction:
Douglass Mackey’s crime was mocking Hillary Clinton voters online. In a meme, Mackey suggests it’s possible to vote for president by text message because only Hillary voters could be stupid enough to believe something so absurd. Mackey’s insult did not alter a single vote in the election and no one has proved otherwise. Mackey was joking. This was mockery, but in the wake of the 2016 election and the rising hysteria about Donald Trump, mocking the Democratic Party became a crime. So as a result, Douglass Mackey faces 10 years in prison. The case against Doug Mackey is the most shocking attack on freedom of speech in this country in our lifetimes.
Really? More shocking than the Stolen Valor Act of 2005, which made it a federal crime to lie about medals?
That’s different how? It’s punishing “false speech.”
When the Stolen Valor Act ended up before SCOTUS, it was the court’s three rightist justices—Alito, Thomas, and Scalia—who wanted to uphold the law (they were outvoted).
The dissent, written by Alito and joined by Thomas and Scalia, is quite the read. Alito states that outlawing “knowingly false statements” “does not chill any valuable speech.”
Extending First Amendment protection only to “valuable” speech? I had no idea Alito works for The New York Times.
“Free speech does not protect false factual statements that inflict real harm and serve no legitimate interest,” Alito wrote. Okay, but what constitutes “real harm”? According to Alito, falsely claiming to have been awarded medals “harms” the “morale and esprit de corps” of genuinely medaled soldiers and veterans.
In other words, it makes ’em sad. In fact, Alito says that if a military impostor causes emotional harm, that’s worse than if he’d committed financial fraud. The liberal and moderate justices disagreed (the Stolen Valor Act was brought back in 2013. This time, though, only medal fakery in the name of material gain was proscribed; making a soldier cry was no longer illegal).
In his dissent, Alito listed dozens of previous SCOTUS decisions that allowed for the prosecution of “false speech.” So spare me, Tuck. There’ve been many other proscriptions of false speech long before Mackey. And Alito—slayer of Roe, saver of wabies—is 100 percent behind those speech bans.
And as for Tuck’s claim that nobody was fooled by Mackey’s deception, that’s irrelevant from a legal standpoint. As Volokh points out, “the question in conspiracy cases is whether the defendants sought to achieve a goal, not whether they actually achieved it.”
Volokh and I have reservations about the Mackey decision, but for different reasons. Volokh is concerned that prosecuting Mackey under 18 U.S.C. §241 (which prohibits conspiracies “to injure, oppress, threaten, or intimidate any person…in the free exercise or enjoyment of any right or privilege secured to him by the Constitution”) is a stretch. Whereas I’m more interested in the “satire” angle. In January, when District Judge Nicholas Garaufis allowed the Mackey case to proceed to trial, he stated, unambiguously, “If the jury finds that the Deceptive Tweets were satire, Defendant Mackey must be acquitted.”
If the tweets are satire, they aren’t actionable. Also, in his dissent in the Stolen Valor case, Alito stated that his objections to “false speech” don’t include satire. If Mackey’s case ever reaches SCOTUS (and Volokh is vehement that it won’t), satire will be the only “out” for Alito, because in that Stolen Valor dissent he boxed himself into a corner on “false speech” by stating that it can be proscribed if it harms “morale and esprit de corps.”
Volokh strongly disagrees with me regarding the merits of a satire-based appeal, because he doesn’t see satire in Mackey’s memes. And indeed, the memes are deadpan, lacking the (to quote Garaufis) “prominent indicia of satire.”
But I write a lot about comedy, and I argued that today’s kids are obsessed with satire that lacks “prominent indicia.” “Pranks” meant to fool people with horrifying fake scenarios (“We’re the Wackybois! Welcome to our channel. Today we’ll be staging a prank ATM robbery!”). And what was Sacha Baron Cohen tricking the husk formerly known as Rudy Giuliani with a fake underage girl if not a politically motivated “highly plausible” (to quote The Guardian) attempt to mislead? Yet at the same time, it was also comedy. The Yes Men are popular satirists who purposely attempt to mislead for political gain via deadpan fakery. I firmly believe that a gag can be, at once, an intentional attempt to mislead and legit comedy.
Volokh was unmoved by my argument, and he knows the law better than I, so I ceded.
But there’s one thing about which Volokh and I do agree: Mackey lost the case because he boned himself with his texts/chats with his coconspirators. Like dumbasses, Mackey and his “frens” boasted about how they were purposely trying to trick people and purposely trying to depress the vote among women and blacks in order to sway the election. They admitted so much in those private messages, they were so brazen about their goal—to suppress votes—that their behavior makes my concerns about the verdict, and Volokh’s, moot. By admitting that his objective was to intentionally keep people from voting (and remember, it doesn’t matter if he actually did; the law cares about intent), that probably satisfies 18 U.S.C. §241 regarding “oppressing” a right. And it kicks the tar out of my satire defense, though bruised as I may be, I still think it’s Mackey’s best avenue for appeal.
Was Mackey’s prosecution politically motivated? Yeah, and it led to a win for the left. Because leftists understand things like venue shopping and “robust interpretation” of existing laws. In 2020, when the head of BLM L.A. proudly told the L.A. Times that Angelenos were targeted by rioters solely because of their race, I suggested to several high-profile conservatives that an expansive interpretation of 42 U.S.C. §1985 could potentially cripple the org. The response? “Aw shucks…don’t nobody ever win in no courts. T’ain’t worth tryin’.”
So don’t get mad at the left for being bolder than your cowards.
The bottom line is, Mackey’s not a figure of sympathy. His own words, his own admissions, sunk him. Mackey admitted to fraud, and that’s that.
But rightists are expending a great deal of time and energy defending him like some crucified Christ of Comedy.
And that leads to a larger point.
How many times since 2016 has the right had to come to the aid of some childish, inept, careless MAGA arsonist who played with matches and burned himself? How many wildfires had to be put out because of these pyros whose small blazes distract from the big fires that everyone ought to be concentrating on?
The January 6 clods, the “Unite the Right” tiki-torchers, Richard Spencer’s “hail Trump,” Bannon & Co.’s “build the wall” con, the “fake electors” scammers, the vote fraud “krakens” who brought about the Dominion lawsuit, Milo Yiannopoulos’ “white scholarship” embezzlement, Roger Stone’s crimes and conviction, the QAnon schizos, George Santos, and now Mackey.
Name any policy good a MAGA superfan has ever done. Because I can name dozens of bad and destructive things that did nothing but take attention away from winning policy issues because a bunch of mentally stunted LULZer lacked the ability to understand consequences.
Aren’t you tired of defending these people? Aren’t you tired of having to put out these unnecessary fires? The left’s on a bender, wreaking unprecedented havoc across America, and every few months everything on the right has to grind to a halt because MAGAs can’t control themselves or grasp concepts like priorities, restraint, and common sense.
Fuck Doug Mackey. The only way to handle these MAGA man-children is to leave them to wallow in the messes they create. Don’t get me wrong; I greatly admire Marina Medvin, an attorney who’s devoted the past two years to vigorously defending J6ers in court, because even the dumbest among us are entitled to a competent defense, and Medvin is way more than merely competent; she’s one of the best.
But that’s her job—to defend. What’s your excuse? And funny enough, or sadly enough, now Medvin’s being attacked by MAGA nutcases who, in their zeal to ferret out “feds” among the rioters, are targeting Medvin’s clients because, since they had effective counsel and fared well in court, they must therefore be FBI! These clods are so dense, they even end up attacking the skilled professionals who try to help them.
So for most of us, there’s zero upside to continuing to defend these people. When they screw up, screw ’em.
For my part, I think the best thing that anyone who cares about the future of this country can do is piss on every fire these pyros start. Tuck likes to fan those flames, I like to douse ’em. If that makes me a scold, so be it. But I’d rather provide thoughtful commentary on a case like Mackey’s than declare it “the most shocking attack on freedom of speech in our lifetimes.”
The best reason to support Ron DeSantis is his impressive list of accomplishments as a highly effective executive.
The second-best reason?
He doesn’t have a cult. No trolls, LULZers, memers, or self-styled “war room” generals.
When MAGAs (like long-lost Kallikak cousin Darren Beattie) say, “But DeSantis is dull! He doesn’t inspire fanatics,” I say, “Yeah, ain’t it grand?”
Because Trump’s cultists haven’t accomplished a single provable good. Why anyone would fret over the idea they might vanish from the scene (should DeSantis get the nomination) is beyond me. Good riddance. They couldn’t possibly leave quick enough for me.
Not that they will; they’ve now taken to disrupting DeSantis rallies, as Trump eggs them on and continues posting QAnon memes on TruthSocial (last week retruthing the “finger in the air” QAnon song that humiliated the GOP when Trump played it at a rally last year).
And as the MAGAs focus their disruptive energy on DeSantis (who hopefully won’t respond by trying to mollify them, and it’s always gonna be a concern that he might), further shifting the fight away from countering the left, ask yourself, would you really miss these lunatics if they disappeared?
Isn’t the notion of a GOP candidate who doesn’t rely on fire-starters just a little appealing?
Ain’t nobody gonna create fake election memes for DeSantis.
Don’t see that as a negative; it isn’t. A good candidate doesn’t need memes.