Lawyers’ Committee for Civil Rights Under Law Files Brief Arguing that the Dissemination of Harmful Election Disinformation Does Not Constitute Protected Political Speech

On Monday, the Lawyers’ Committee for Civil Rights Under Law filed an amicus brief in United States v. Mackey, a caseconcerning the conviction of Douglass Mackey for his 2016 efforts to carry out a voter suppression scheme targeting Black people and other people of color. Mackey used memes on social media to deceive people about where, when, and how they could vote. His purpose was to deter them from showing up at the polls on Election Day. Mackey claims that his actions were protected by the First Amendment.

The Lawyers’ Committee brief argues that the First Amendment does not protect efforts to spread harmful election disinformation with the intention of disenfranchising voters and that if the court provides protection to the kind of conduct at issue in Mackey, it has the potential to threaten the exercise of the right to vote by populations targeted by such deceptions—often Black communities and other communities of color. The brief explains how the advent of artificial intelligence tools with the ability to generate “deepfake” images, videos, and recordings could supercharge similar disinformation campaigns in the future and lead to devastating consequences for communities of color.

“Our democracy thrives when all voices are heard at the ballot box, but the conduct at issue in this case imperils the essential building blocks of that democracy,” said Ezra Rosenberg, co-director of the Voting Rights Project at the Lawyers’ Committee for Civil Rights Under Law. “Trying to fool people into losing their vote is not protected speech. It is unlawful conduct whose perniciousness is exacerbated by its being targeted at Black voters—voters whose ancestors put their lives on the line to gain this essential freedom. We are committed to ensuring that disinformation does not silence the vibrant, diverse chorus that is America’s strength.”

Tens of thousands of voters likely received these messages, and several thousand followed the instructions in the memes. In its amicus brief, the Lawyers’ Committee outlined that Mackey’s efforts to suppress the votes of Black people and other people of color are not protected speech because the government has the right to prohibit intentionally false and harmful statements about voting requirements and procedures, which are essential to the functioning of our democracy.

“We cannot stand idly by as technological advancements are used to lock Black and Brown communities out of the polls,” said Marc Epstein, senior counsel of the Digital Justice Initiative at the Lawyers’ Committee. “There continue to be significant developments in the technologies that allow people to create misleading and harmful election disinformation and deter marginalized communities from exercising their voting rights. Our democracy cannot afford to let this trend continue unchecked.”

The tools and technology that Mackey employed allow individuals to create disinformation that:

• is impossible to differentiate from the truth;
• targets populations whose votes have been historically subjected to suppressive tactics;
• rapidly disseminates their messages to have the greatest possible impact.

His conviction is currently on appeal to the United States Court of Appeals for the Second Circuit.