A Brooklyn, New York federal judge Monday rejected Douglass Mackey’s arguments to dismiss an indictment brought by federal prosecutors from the Eastern District of New York (EDNY). Mackey is accused of participating in an online conspiracy to spread deceptive information during the 2016 Presidential election to injure some Twitter users’ right to vote. Mackey argued that the indictment should be dismissed because the government failure to establish a proper venue for the accusation, and that the indictment itself is a violation of due process and Mackey’s First Amendment right to free speech.

In court, Mackey argued that he did not commit, engage in, or link with anyone within the EDNY. Mackey claimed that because of this, federal prosecutors attempt to use tweets to establish a criminal venue is improper. However, the court held the historical procedures have long recognized that the “interpretative dynamism [is] necessitated by the rapid technological change.” In other words, electronic communications such as tweets could be established as communications that could “foreseeably” pass through the EDNY to further Mackey’s alleged conspiracy. Therefore, it is not necessary for federal prosecutors to establish a physical venue for the charges.

Mackey then argued that the indictment violated his due process rights since he did not receive a sufficient warning that conspiring to tweet false voting information constituted criminal conduct pursuant to Section 241 of the US Code (USC). The court also rejected this argument because past decisions of conspiracies to injure the right in any way prevent people’s right to vote without use of force and a reasonable reading of the statute give ample warning that the alleged conducts constituted a violation.

Lastly, the court rejected Mackey’s submission that the indictment violated his right to free speech under the First Amendment. The court emphasized that the case is targeting the substance of what was said, not the act of expression. The court maintained that this case is not established on speech but rather on conspiracy and injury:

Political speech is, to be sure, ‘at the heart of American constitutional democracy’ and the area where the First Amendment’s ‘constitutional guarantee has its fullest and most urgent application.’ […] But the definition of political speech cannot be unlimited. The prosecution targets speech that harms the election process rather than a speech of a candidate that expresses views.

For these reasons, the court rejected the motion to dismiss, allowing the proceedings against Mackey to continue.

Federal prosecutors claim Mackey took part in a conspiracy in 2016 to suppress Democratic voters through a “coordinated disinformation campaign” by devising memes and other social media posts. Federal officials arrested Mackey on January 27, 2021 in West Palm Beach, Florida. Then-acting-US Attorney for the EDNY Seth DuCharme said that Mackey attempted to  “defraud citizens of their right to vote” by spreading lies and misinformation. The alleged deceptive information included informing voters they could cast their vote on Facebook or Twitter with the hashtag “EUReferendum” or over text.