Memes are legal again

The Second Circuit Court of Appeals has thrown out the conviction of Douglass Mackey for lack of evidence, remanding his case to a district court for immediate dismissal. The ruling marks a massive victory for shitposters everywhere.

For those of you who are not extremely online or deeply obsessed with the Pilgrim’s Progress of First Amendment rights in America, Mackey is the online figure formerly known as “Ricky Vaughn” who the Biden FBI arrested in 2021 for a tweet he posted in 2016 making fun of Hillary Clinton and spreading satirical information about “texting to vote.” The government said he was using “social media to spread disinformation relevant to the impending 2016 Presidential Election.”

A Florida resident, Mackey was tried in New York, where he’d previously worked as a financial analyst. The district court judges sentenced him to seven months in federal prison under 18 USC § 241, known as the Ku Klux Klan Act, which originally meant to stop violent deprivations of civil rights in the aftermath of the Civil War. In other words, they sentenced Mackey for exercising his free-speech rights but used a voting-rights law in order to justify it. No wonder the case has been overturned.

If you look at the details of the “Ricky Vaughn” case, you’ll see how long-ago it all seems. Mackey received a ban from Twitter in 2016, long before Elon Musk bought it, for being an “indefatigable circulator of edgy memes and rah-rah Donald Trump boosterism,” heaven forbid. He had a whopping 58,000 followers at the time, which made him more influential, apparently, than Stephen Colbert. His crime? Encouraging people to “avoid the voting line” by texting their vote for Hillary Clinton to a certain number, a scheme that ensnared nearly 5,000 “shitlibs.” He was, in internet terms, a prehistoric memelord.

“There remains a major First Amendment concern embedded in Mackey’s case, centered around satirical content in the digital spaces that have emerged in the last decade,” the Harvard Law Review wrote last year. “Memes are a new form of digital communication that nearly always contain unserious elements. Using memes to prove a criminal conspiracy risks chilling a vast amount of speech on social media, especially if this is done without consideration of mens rea.”

“Mens rea” is a legal term that means, essentially, “intended to commit a crime.” While it’s clear that Ricky Vaughn intended to post a meme, and intended to troll Hillary supporters, calling what he did a “crime” would be a huge stretch. There’s really not much of a chance, in the current political climate, that someone will go to jail for posing anti-Democrat memes, nor should they. Memes are essentially a modern interactive version of the political cartoon.

In Hustler v. Falwell (1988), the Supreme Court ruled that political cartoons, political cartoons, even those that are offensive or critical, are a vital part of public discourse. Political cartoons are the essence of what the First Amendment protects, and “alt-right” memes from a decade ago were as influential and important in their time as the works of Thomas Nast were in the 19th century, or satirical pamphlets around the time of the American Revolution. They are literally the reason the Constitution exists, even if the Founders didn’t quite predict ironically racist frog cartoon characters.

Mackey, for his part, is celebrating on X, where he has a blue check mark, but only 53,700 followers, down from his 2016 peak. He says he’s going to sue the government, and thus far has deployed no memes.