[EL] Mackey prosecution for deceptive statements about permissible means of voting

[Levitt, Justin]

FWIW, DOJ's longtime interpretation of the criminal statutes w/r/t election crimes is here<https://www.justice.gov/criminal/file/1029066/download>, with a historical overview here<https://www.justice.gov/criminal/file/1029066/download#page=31>, and a specific examination of 18 USC 241 here<https://www.justice.gov/criminal/file/1029066/download#page=45>.  There have indeed been prosecutions of private action before (with a discussion of that starting here<https://www.justice.gov/criminal/file/1029066/download#page=48>).

Justin

From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf Of Volokh, Eugene
Sent: Tuesday, February 2, 2021 9:15 AM
To: law-election at department-lists.uci.edu
Subject: [EL] Mackey prosecution for deceptive statements about permissible means of voting

Dear colleagues:  I've long thought that knowing falsehoods about the mechanisms of voting (where, when, and how to vote) could be punishable, consistently with the First Amendment, even if knowing falsehoods about the issues in the campaign (e.g., what the budget deficit is, what effects some law had, etc.) can't be punished.

But I'm unsure whether the Mackey prosecution for such speech, see https://www.justice.gov/opa/press-release/file/1360816/download, is statutorily authorized - is it clear that 18 U.S.C. § 241 applies to this sort of deception, especially when the deception does not involve state action?  Have there been other such prosecutions in the past?  I'd love to see some pointers to more information on this.

              Relatedly, how would lies said to nongovernmental actors aimed at trying to frustrate the exercise of other constitutional rights be handled?  Say, for instance, that two people want to persuade WordPress to shut down someone's blog, and conspire to falsely claim that the blog is a tool in some violent plot; is that a conspiracy to injure or oppress the blogger in the free exercise or enjoyment of his First Amendment rights?  Or say that two people don't like some speaker who is giving a public speech at a local public university, so they falsely circulate messages saying the speech was canceled (knowing that the messages are false, but hoping some people would be duped into attending).  Under the theory of the Mackey indictment, wouldn't that be a federal felony as well, though the right involved is the First Amendment right to listen (and to speak by asking questions at the event) rather than the right to vote?

               Many thanks for any help you might provide,

Eugene Volokh
               UCLA School of Law
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