A federal appeals court on Wednesday overturned the election interference conviction of a far-right activist who had posted fake ads that told voters to use text messages to vote for Hillary Clinton in the 2016 presidential election.
The activist, Douglass Mackey, was convicted of conspiracy against rights in March 2023, after federal prosecutors in Brooklyn said that he and other social media users had spread memes on Twitter that falsely claimed that Mrs. Clinton’s supporters could vote by texting “Hillary” to a given phone number in the days before the election.
On Wednesday, a three-judge panel from the U.S. Court of Appeals for the Second Circuit determined that prosecutors had not proved that Mr. Mackey knowingly agreed to join a conspiracy to fool voters.
Mr. Mackey, a Vermont native who graduated from Middlebury College, was sentenced to seven months in prison in October 2023. He had been released on bail as he awaited the outcome of his appeal, and he celebrated the news Wednesday afternoon.
“HALLELUJAH,” Mr. Mackey, 36, posted to his 56,000 followers on X, the platform formerly known as Twitter.
Andrew Frisch, a lawyer for Mr. Mackey, said in a statement on Wednesday that “we are overjoyed that the Second Circuit has vindicated Mr. Mackey and validated the arguments in his defense that we made at trial.”
The case represented a small part of the efforts to crack down on the misinformation that had helped influence the 2016 election. President Trump has repeatedly attacked those investigations as politically motivated.
The decision was a triumph for right-wing activists who had rallied behind Mr. Mackey, claiming he was targeted by a biased system, a frequent refrain about the Justice Department from supporters of Mr. Trump.
“BREAKING: MEMES ARE NOW LEGAL AGAIN,” Jack Posobiec, a far-right activist who helped spread the “Pizzagate” conspiracy, wrote on X.
Under the alias Ricky Vaughn, Mr. Mackey operated one of the most prolific far-right accounts on Twitter during the 2016 election. He frequently posted antisemitic and white nationalist propaganda, and his following earned him a spot on M.I.T.’s top 150 influencers of the election.
Twitter shut down his account one month before the election. Prosecutors said Mr. Mackey’s posts had become criminal when he shared images that they said were meant to suppress the votes of Mrs. Clinton’s supporters. The memes featured logos that looked like the Clinton campaign’s and included fine print that said the ad had been paid for by the campaign.
Mr. Mackey conspired with other Twitter users to share the images, gathering in group chats named “War Room,” “Micro Chat” and “Madman #2” to discuss ways to amplify Mr. Trump’s message using “meme magic,” prosecutors said.
One fake ad posted by Mr. Mackey featured an image of a Black woman holding a sign that said “African Americans for Clinton,” along with the text: “Avoid the line. Vote from home.” Mr. Mackey had added the hashtag #ImWithHer. He posted another meme that repeated the same message in Spanish.
At least 4,900 unique phone numbers texted the number posted in the fake ads, according to prosecutors.
Yet the appeals court was skeptical of prosecutors’ theory. Chief Judge Debra Ann Livingston wrote that Mr. Mackey might have merely decided to post the memes on his own. Prosecutors had not shown that he was aware of similar posts in the War Room group chat, she wrote, and the remaining evidence was “inadequate to show his knowing participation in a conspiracy.”
In the two weeks before he posted the fake ads, Mr. Mackey was not active in the War Room chat, Judge Livingston wrote. From early October through the election, she wrote, he was not a member of two other chats in which activists schemed to make their pro-Trump, anti-Clinton messages go viral on Twitter.
And Mr. Mackey’s tweets alone, Judge Livingston wrote, were not sufficient to prove a criminal conspiracy. Around 98 percent of the people who texted the number to “vote” for Mrs. Clinton received automated responses saying that her campaign was not behind the ads.
“The government presented no evidence at trial that Mackey’s tweets tricked anyone into failing properly to vote,” Judge Livingston wrote.
The decision seemed to further embolden Mr. Mackey’s already prolific posting. After Wednesday’s decision, he reposted plaudits from far-right accounts and returned to amplifying the same memes that had gotten him in trouble.
“Ladies and Gentlemen, Government Exhibit #720,” Mr. Mackey posted, including an image of one of the fake ads.
Santul Nerkar is a Times reporter covering federal courts in Brooklyn.
The post Court Overturns Conviction for Memes That Sought to Trick Clinton Voters appeared first on New York Times.
