Crime

Biden DOJ Prosecuting Conservative Just For Posting Memes!!! Oh, And Massive Voter Fraud.

Honestly, it's one or the other and Tucker Carlson just can't tell.

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My response to Tucker Carlson about reading an affidavit.

Tucker Carlson was very, very agitated last night that the FBI arrested well-known white nationalist Doug Mackey. Well, Tucker doesn’t claim to know anything about Mackey’s views — which would require astounding levels of professional ignorance — but he’s angry over the principle of the thing. So much so that Carlson decided to open his show with the topic, warning his audience that Big Brother’s thought police are coming for the Internet.

His crime? He made fun of powerful Democrats on social media…. This “disinformation” the Biden administration solemnly explained, quote, often took the form of memes. Yes, memes. Online mockery. Online mockery is now illegal if it’s aimed at the wrong people.

Well, that’s one takeaway. The other, far more accurate takeaway, is the part where Mackey’s accused of orchestrating large-scale voter fraud. I’m thinking that’s the part that the FBI is more concerned about.

And how is this “the Biden administration” explaining anything? Merrick Garland’s not confirmed yet. This investigation didn’t kick off last week. Does this show even bother to run their legal claims past a real lawyer? Obviously that’s a rhetorical question.

Mackey, doing online trolling business as “Ricky Vaughn,” and his alleged co-conspirators did make a bunch of memes and the charging affidavit does make basic Internet usage seem shady as it’s setting up the charges and these goofy paragraphs inspired right-wingers to spend the afternoon aghast at out-of-context quotes. For instance:

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Yes, none of that’s illegal and when someone posts on Twitter saying, “look what they arrested this guy for doing” and posts that image it can generate some hate clicks. But if someone invested the time to actually read the whole thing instead of relying on Tucker Digest, the FBI isn’t suggesting any of that is illegal either.

This filing is unsurprising to anyone who has ever had to read an FBI affidavit discussing any technology more modern than a sundial. Entirely committed to the bit of explaining everything like they’re always talking to a Boomer — but when that Boomer was a first-grader in 1953 — the DOJ’s technical writing reads like it’s stuck in one of those Progressive Dr. Rick commercials: “so, then these guys got real big with the ‘hashtagging’ and ‘memerization’ over there on the intertubes!” In my own practice, I read several of these that described “e-mail, short for electronic mail” as if it spawned from a wizard’s staff. That was in 2010.

Yes, it is entirely worthy of mockery and the DOJ would, as an institution, be better served to start writing as though we’ve all had access to this technology for a couple decades at this point. But taking these dorky paragraphs and telling a bunch of non-attorneys that it means the government is trying to ban their online presence is irresponsible.

Carlson explicitly told his audience that the federal government had declared it a crime to post memes directed at powerful Democrats. That is not a crime. It is, however, a crime to engage in a conspiracy to suppress someone’s basic rights, like attempting to defraud voters:

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So it’s not so much that “online mockery” is illegal as creating fake messages from an opposing campaign and convincing those voters to waive their right to vote by sending a text message is illegal. That is where 18 U.S.C. § 241 comes in, which provides in relevant part:

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….

Like, if someone were to conspire to interfere with the right to vote. According to the filing, the federal government found that at least 4,900 unique phone numbers “voted” through Mackey’s scheme. That’s several more than Tucker claimed were impacted — despite the fact that he had the document right there and could have looked it up easily. It’s also orders of magnitude more people than were impacted by whatever Dominion, triple-counting, Italian vanloads of ballots wingnuttery Tucker spent the last few months hyping.

In the meantime, feel free to post whatever memes you want. Go ahead and mock powerful Democrats online to your heart’s content. As long as you steer clear of voter fraud, this case shouldn’t be a problem for you.

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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