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

[David Mason]

Here is a link to the DOJ release on sentencing in the phone jamming case,
which appears to be under a different section of the criminal code:
https://www.justice.gov/archive/opa/pr/2005/December/05_crm_672.html

On Tue, Feb 2, 2021 at 1:06 PM Levitt, Justin <justin.levitt at lls.edu> wrote:

> 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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