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Horowitz: FBI comes dangerously close to criminalizing free speech by indicting man for tweeting election memes

Op-ed

No, this crackdown is not being driven by a concern for security and a sense of justice

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We have all shared this unsettling premonition that the attack on free speech is not just coming from Big Tech with the threat of censorship, but from the government backed by criminal prosecution. We are watching the government arrest hundreds of people not just for violence but for trespassing and negligible crimes at the Capitol when many of them were let into the building by the police. We are seeing the billboards and technology being used to hunt people down, as the most violent Antifa rioters are never arrested. No, this crackdown is not being driven by a concern for security and a sense of justice.

Well, now it's confirmed that the government itself is rapidly headed toward criminalizing the speech of Trump supporters. The government is treating Antifa's violence like speech and our speech like violence. What starts with bad behavior by Trump supporters (while ignoring what the other side does) will not end there.

Yesterday, a bizarre headline from the Justice Department's Office of Public affairs caught my attention and raised the ire of many conservatives. "Social Media Influencer Charged with Election Interference Stemming from Voter Disinformation Campaign," read the headline of a press release from the DOJ's Eastern District of New York. That seemed odd to me because I've never seen such a vague and intangible charge after years of sifting through daily press releases from U.S. attorneys about espionage, trade theft, and gang activity. As I read further, my worst suspicions were confirmed.

"A Florida man was arrested this morning on charges of conspiring with others in advance of the 2016 U.S. Presidential Election to use various social media platforms to disseminate misinformation designed to deprive individuals of their constitutional right to vote."

Wow, that sounds interesting. So the DOJ is finally going after election fraud? Did this guy throw out ballots or engage in mail-in fraud like endless witnesses said in sworn affidavits and in testimony before legislatures? No, the DOJ is not interested in tangible fraud that involves an action; in fact, it is investigating any DOJ official who might have sought to investigate such fraud. It only prosecutes speech.

Douglass Mackey, aka Ricky Vaughn, 31, of West Palm Beach was taken into custody and charged with having "exploited a social media platform to infringe one the of most basic and sacred rights guaranteed by the Constitution: the right to vote," according to Nicholas L. McQuaid, Acting Assistant Attorney General of the Justice Department's Criminal Division.

Again, I was confused how someone can use their own speech to infringe upon the right of a voter and actually succeed in stealing a vote.

After several paragraphs of DOJ officials bloviating about constitutional rights to vote, they finally announced his crime.

As alleged in the complaint, between September 2016 and November 2016, in the lead up to the Nov. 8, 2016, U.S. Presidential Election, Mackey conspired with others to use social media platforms, including Twitter, to disseminate fraudulent messages designed to encourage supporters of one of the presidential candidates (the "Candidate") to "vote" via text message or social media, a legally invalid method of voting.

Boy, is that a mouthful! This standard would basically rope in half the country. The other half of the country always believes everything the other side is putting out is false information that is extremely dangerous. We'd all be in jail.

How exactly did the person engage in fraud?

For example, on Nov. 1, 2016, Mackey allegedly tweeted an image that featured an African American woman standing in front of an "African Americans for [the Candidate]" sign. The image included the following text: "Avoid the Line. Vote from Home. Text '[Candidate's first name]' to 59925[.] Vote for [the Candidate] and be a part of history." The fine print at the bottom of the image stated: "Must be 18 or older to vote. One vote per person. Must be a legal citizen of the United States. Voting by text not available in Guam, Puerto Rico, Alaska or Hawaii. Paid for by [Candidate] for President 2016."

The tweet included the typed hashtags "#Go [Candidate]" and another slogan frequently used by the Candidate. On or about and before Election Day 2016, at least 4,900 unique telephone numbers texted "[Candidate's first name]" or some derivative to the 59925 text number, which was used in multiple deceptive campaign images tweeted by the defendant and his co-conspirators.

Folks, this is very scary. No, not the alleged crime, but that the feds are going after such behavior while ignoring sworn allegations of mass fraud. While what is alleged appears to be mean and spiteful, at the end of the day, there is no way to actually steal a vote with this subterfuge. Not unless someone thought that, based on a random internet tweet, they could vote via text, and without verifying anything thereafter, would have sent their text and then stayed home. By this standard, every governor who violated election law and actually facilitated the casting of ballots not pursuant to law should be in jail.

There are some really distasteful ways people use their freedom of speech – sometimes in a serious way or sometimes in a joking way – but the First Amendment was not written to protect benign speech. To arrest only one side of the divide for social media memes at a time when officials are letting cities burn is very concerning. And it opens a very slippery slope for the government to prosecute people for saying anything that the government believes is harmful.

Is it that hard to envision an FBI agent knocking on your door and saying, "You just wrote information telling people masks don't work and to stop wearing them. You are engaging in fraud and are an accessory to murder!"

If you don't believe me that this could happen, take a look at yesterday's "National Terrorism Advisory System Bulletin," published by the Department of Homeland Security. The bulletin warns about threats from "Domestic Violent Extremists (DVEs) targeted individuals with opposing views engaged in First Amendment-protected, non-violent protest activity," which include those "motivated by a range of issues, including anger over COVID-19 restrictions, the 2020 election results …"

Thus, they now consider opposing views and First Amendment-protected speech highlighting governmental actions taken against other rights under the guise of COVID as a national security threat on par with ISIS or Hezbollah.

"Threats of violence against critical infrastructure, including the electric, telecommunications and healthcare sectors, increased in 2020 with violent extremists citing misinformation and conspiracy theories about COVID-19 for their actions," warns the bulletin. "DHS, as well as other Federal agencies and law enforcement partners will continue to take precautions to protect people and infrastructure across the United States."

Mind you, as they treat our speech as terrorism, they fail to mention a word about Antifa seeking to overthrow the government and attacking government buildings, even Democrat Party offices.

Some might automatically object to this concern by saying that the individual in question used the speech to attempt to defraud people with a specific scheme. Thus, this would be speech that is buttressed by an action; namely, setting up a fraudulent voting number. Yes, tyranny will always begin with the veneer of justice and under the color of law. I am certainly not defending someone for doing this if he indeed is guilty of it. But what does it tell you that this is the one voter fraud indictment the DOJ will make while refusing to even look into any of the evidence of pro-Biden fraud presented in the state legislatures? What does it say that Antifa can destroy our streets every night and attack ICE buildings, yet the FBI is focused on Trump supporters?

In this case, the DOJ is not even charging the man with voter fraud, because indeed his alleged actions don't fit the definition of any of those statutes. Instead, they bizarrely chose to focus on the fact that he worked with other people and therefore might have violated the generic "conspiracy against rights," under 18 U.S. Code § 241. That title makes it a federal crime for "two or more persons" to "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 …"

By that definition, every single governor and mayor should be arrested for conspiring to violate life, liberty, and property under lockdown policies. Voting is very important, but it is ultimately the result of law and can be taken away under some circumstances, unlike property rights and certainly freedom of speech.

The Department of Justice might have a legal case here from an extremely vague statute (to the extent it's constitutional), but the asymmetry in its prosecutorial discretion is bordering on a sadistic two-tiered justice system. If this were Singapore and the government evenly and scrupulously prosecuted every minor offense to the letter of the law, I'd be less concerned about this. It would be one thing if the FBI had evidence of a number of people who used this text hotline and declined to actually vote, believing they had already voted. But there was no evidence of such a thing in the indictment, which makes it peculiar that they are focusing on this, even if they can find a crime to charge him with. This indictment, mixed with the other martial-law-like actions and the indefinite deployment of troops, is not coming from a good place and is headed to a good destination.

A friend of mine from Michigan, Garrett Soldano, got a call from the FBI last week because someone told them he is "an extremist." If you are reading this and thinking you can still rigorously fight for conservative policies and not have to worry about the "law" coming after you as long as you act in accordance with the law, then you need to wake up before it's too late. And don't expect the "paragons of free speech" at the ACLU to be there for you in your time of need.
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