The Second Circuit just handed the Biden Department of Justice a humiliating defeat. On July 9, 2025, a unanimous three-judge panel in United States v. Mackey, No. 23-7577, threw out the conviction of Douglass Mackey — known online as “Ricky Vaughn” — and ordered a judgment of acquittal. This is a massive win for the First Amendment and a cautionary tale about what happens when federal prosecutors weaponize the criminal law against political speech.
What Mackey Actually Did
Back in November 2016, Douglass Mackey — then a 24-year-old internet provocateur tweeting under the alias “Ricky Vaughn” — posted a handful of memes suggesting Hillary Clinton supporters could vote by text message. Were the memes misleading? Sure. Were they the kind of thing any sentient adult could see through in three seconds? Absolutely. Nobody seriously believed that presidential votes could be cast by SMS.
That’s the baseline reality the Biden DOJ chose to ignore. Mackey was posting pro-Trump and anti-Clinton commentary at volume, and these memes were clearly satirical jabs. Plenty of people saw them, plenty laughed, and no credible evidence emerged that a single person actually tried to vote by text.
The Politically-Timed Indictment
Here’s the part that should make your blood boil. The events in question happened in November 2016. Donald Trump left office at the end of January 2021. Within days — literally days — of Trump departing the White House, the Biden DOJ swooped in and indicted Mackey in the U.S. District Court for the Eastern District of New York, in Brooklyn.
The timing was deliberate. By waiting until Trump was out of power, Biden’s DOJ ensured Trump had no opportunity to pardon Mackey. They then took this meme case all the way to a jury trial, and in March 2023 secured a conviction under 18 U.S.C. § 241, the federal conspiracy against rights statute. That statute was born out of Reconstruction-era efforts to combat violent white supremacist attacks on Black voters. Deploying it against internet memes is an obscenity.
What the Second Circuit Found
The Second Circuit — sitting in New York City, not Texas, not the Fifth Circuit — threw the whole thing out, 3-0. Chief Judge Debra Ann Livingston, Judge Reena Raggi, and Judge Beth Robinson were not impressed. Here’s what the court wrote:
On November 1st and 2nd, 2016, defendant Douglass Mackey posted or reposted three memes on Twitter falsely suggesting that supporters of then-candidate Hillary Clinton could vote in the 2016 presidential election by text message. But the parties here do not dispute either that Mr. Mackey posted the memes or that his doing so independently would not be a crime under § 241. Section 241 criminalizes only conspiracies between two or more persons. As a result, the mere fact that Mackey posted these memes, even assuming that he did so with the intent to injure other citizens in the exercise of their right to vote, is simply not enough, standing alone, to prove a violation of § 241.
The government needed to prove a conspiracy — a knowing agreement between Mackey and at least one other person to pursue an illegal objective. They couldn’t do it. Their star witness was an individual who, by the government’s own admission, had never spoken with Mackey, never even met him. That person cut a cooperation deal under threat of imprisonment and testified anyway. As the court noted:
The government’s primary evidence of agreement, apart from the memes themselves, consisted of exchanges among participants in several private Twitter message groups — exchanges the government argued showed the intent of the participants to interfere with others’ exercise of their right to vote. Yet the government failed to offer sufficient evidence that Mackey even viewed, let alone participated in, any of these exchanges.
Bang. Acquittal ordered.
Prosecutorial Overreach and the Stakes for Free Speech
My read on federal prosecutors is no secret: the thumb is perpetually on the scale in their favor. When you can threaten a defendant’s associates with prison time unless they testify for you, you can build cases out of thin air. I never had that advantage as a civil trial lawyer on Wall Street — everyone fights on the merits. Federal criminal practice isn’t like that, and this case is Exhibit A.
What makes this prosecution especially galling is its chilling effect on speech. The entire point of going after Mackey — a young man with no violent history, posting jokes on Twitter — was to signal to anyone with conservative views online: say the wrong thing and we will ruin your life. That is political persecution, not justice.
This was always a First Amendment case dressed up in conspiracy clothes. As the Second Circuit correctly recognized, you cannot get to § 241 when the government cannot prove an actual conspiracy. The court was right to order acquittal, and I’m glad they did it unanimously.
The Right DOJ Priority
I have been arguing for years that federal prosecutors need to focus their firepower on violent criminals, cartel members, and genuine threats to public safety — not on targeting political speech with charges borrowed from Reconstruction-era civil rights law. Attorney General Pam Bondi has made clear that the current DOJ is refocusing on exactly that: violent thugs, not meme-posters.
Douglass Mackey spent years under indictment and then conviction for internet jokes. The Second Circuit just set the record straight. Whether you agreed with his 2016 tweets or found them obnoxious, the principle is the same: the federal government’s power to imprison people cannot be turned against citizens for political speech. United States v. Mackey, No. 23-7577, is a win — and a warning.
This article is based on analysis by Professor Mark W. Smith, constitutional attorney and Host of the Four Boxes Diner 2nd Amendment channel. Watch the original video here. This does not constitute legal advice.