A federal appeals court Wednesday overturned the conviction of a conservative social media influencer accused of trying to trick his followers into believing they could vote online for Democratic nominee Hillary Clinton during the 2016 presidential election.
The Second Circuit Court of Appeals voted unanimously to toss out Douglass Mackey’s March 2023 conviction, citing a lack of evidence, and remanded it to a lower court with instructions for acquittal, which means Mr. Mackey cannot be tried again in the case.
Mr. Mackey faced a seven-month prison sentence for posting an image online, ahead of the 2016 election, that mimicked a Hillary Clinton campaign message.
It read, “Avoid the Line. Vote from Home, Text ‘Hillary’ to 59925. Vote for Hillary and be a part of history.”
During the Biden administration, the FBI investigated the case and Mr. Mackey was charged and convicted with conspiring to interfere with potential voters’ rights.
“This groundbreaking prosecution demonstrates our commitment to prosecuting those who commit crimes that threaten our democracy and seek to deprive people of their constitutional right to vote,” Breon Peace, United States Attorney for the Eastern District of New York, said in a joint statement at the time.
First Amendment advocates decried the charge and said it violated Mr. Mackey’s free speech rights. Critics argued Mr. Mackey was the target of a political prosecution by Mr. Biden’s Justice Department, which was accused of going after other conservative targets, as well as President Trump, for political purposes.
Mr. Mackey was convicted of posting nothing more than “memes” trolling Mrs. Clinton, critics of the prosecution said.
The Harvard Law Review, which reviewed the case in March 2023, said the precedent created by the charge against him “is a dangerous one that lessens First Amendment protections in the digital marketplace of ideas.”
The Second Circuit ruled that there was insufficient evidence to prove that Mr. Mackey participated in a conspiracy to deceive Clinton voters into believing they could vote by text.
“The government was obligated to show that Mackey knowingly entered into an agreement with other people to pursue that objective,” the court wrote. “This the government failed to do.”
Sen. Tom Cotton, Arkansas Republican, said the Justice Department’s charge against Mr. Mackey constituted an abuse of power.
“Unfortunately, it was the norm for Biden’s DOJ. They let violent criminals go free while targeting conservatives for posting memes. I’m glad this prosecution has been thrown out,” Mr. Cotton said in a statement.
Mr. Mackey, who has more than 55,000 followers on X, praised the court’s decision, thanking his lawyer and family.
“Now we sue,” he said.
