ZadekpediaEugene Volokh is a law professor at UCLA School of Law who teaches free speech law, among other topics. He is also a computer scientist by training, having entered college at 15 and pursued a career in computer science before switching to law. He is the creator and co-blogger of The Volokh Conspiracy, a daily blog sponsored by Reason magazine. He appeared as a guest on The Bob Zadek Show on March 14, 2021, to discuss the intersection of technology and free speech law. Criminal Memes: The Ballad of Ricky Vaughn (2021)
On the show
1 appearance, 2021.
- 2021-03-14 · Criminal Memes: The Ballad of Ricky Vaughn · 52:19 — Technology and Free Speech Law.
The Ricky Vaughn prosecution
Volokh discussed the criminal prosecution of Douglas Mackey, known by the pseudonym Ricky Vaughn, who posted memes during the 2016 election that he was accused of using to mislead people about how to vote. One meme featured a picture of Hillary Clinton and instructed voters to cast a vote for her from home by posting the word “Hillary” to Twitter or Facebook with a hashtag between 7:00 a.m. and 9:00 p.m. Eastern on November 8th. Volokh noted that while most people would recognize this as a joke, there was reason to think Mackey deliberately tried to mislead a very few people into not voting the legally authorized way. Criminal Memes: The Ballad of Ricky Vaughn (2021)
Volokh framed the legal question as twofold: whether the speech could constitutionally be made illegal, and whether it had actually been outlawed by the statute the government sought to apply. He argued that speech deliberately lying about the mechanics of voting—where to go, what time, what day, how to vote—is not constitutionally protected and can be punished as a kind of fraud, just as one cannot defraud someone out of money. However, he distinguished this from broader lies about elections, such as about the size of the budget deficit or the real reason for some government action, which he said probably cannot be punished. He noted that the Supreme Court has never resolved this question and lower courts are in disagreement. Criminal Memes: The Ballad of Ricky Vaughn (2021)
The statute at issue in Mackey’s case was not one banning lies about elections but one banning conspiracies to injure, oppress, threaten, or intimidate any person in the free exercise or enjoyment of any right secured by the Constitution. Volokh argued this statute could not be used to outlaw Mackey’s speech because it was too non-specific and, if read to cover this speech, too broad and too vague. He concluded that Mackey should not be convicted under that statute but could be convictable under a narrower statute. He suggested that a statute making it a crime to knowingly provide false information about election procedures for the purpose of deceiving people into voting in an illegal time, place, or manner would be narrow, clearly defined, and constitutional, noting that some states have similar statutes. Criminal Memes: The Ballad of Ricky Vaughn (2021)
Criminal libel
Volokh discussed arguments against a well-drafted criminal libel statute. He identified two main arguments: first, that it gives prosecutors the opportunity to go after people who may not be lying but whom the prosecutor thinks are lying, or simply wants to claim are lying—for instance, prosecuting a political enemy to derail their campaign. Second, that because libels are so numerous and easy to produce, any such law would be sharply underenforced and subject to viewpoint-based enforcement. Criminal Memes: The Ballad of Ricky Vaughn (2021)
He suggested one possible narrower approach: limiting criminal libel to statements on matters of purely private concern, leaving public matters to civil remedies. He noted, however, that the legal system has not done a good job of delineating what is public and what is private. He gave the example of a negative review of a doctor, where the doctor calls the prosecutor claiming the review is a lie. Volokh asked whether that should be the basis for criminal prosecution and whether the prosecutor might make the decision based on whether the doctor has his ear. Criminal Memes: The Ballad of Ricky Vaughn (2021)
Volokh described the spectrum of opinion among law professors: a huge number clustered at one end saying criminal libel is ridiculous and nobody gets prosecuted anymore, and basically no one at the other end saying criminal libel law should be brought back. He placed himself in the middle, saying he wants to study the question more and that it is not clear in either direction. He noted that criminal libel is actually being used and rediscovered, and that people have neglected the possibility of criminal libel prosecutions and their constitutionality for decades. Criminal Memes: The Ballad of Ricky Vaughn (2021)
Across episodes
Volokh’s concept of “cheap speech”—the deluge of speech the internet has brought, where everyone can publish almost costlessly—was invoked in a February 1, 2023 episode by guest Will Duffield, who contrasted the United States, where the First Amendment prevents politicians from restricting online speech, with Germany and Turkey, which have passed new laws restricting what people can say online. Duffield described how powerful figures in the United States instead use jawboning. The episodes show no development of Volokh’s own position between the episodes; the later episode cites his concept rather than revisiting his arguments. ‘Jawboning against Speech’ with Will Duffield (2023)