Eugene Volokh is a law professor at the UCLA School of Law, where he teaches free speech law among other topics, and the creator and co-blogger of The Volokh Conspiracy, a daily blog sponsored by Reason magazine. Bob Zadek introduced him on the March 14, 2021 episode as one of the leading legal scholars on the First Amendment, noting that Volokh had also been a computer scientist and had entered college at 15 before switching to the law. Volokh appeared on the show to discuss the criminal prosecution of Douglas Mackey, the pseudonymous poster known as Ricky Vaughn, and the broader question of how free speech law applies to social media. Criminal Memes: The Ballad of Ricky Vaughn (2021)
The Ricky Vaughn prosecution
Volokh wrote about the Mackey case in a long-form piece for Tablet magazine, commissioned for an honorarium and running about 2,500 words. He described Mackey as the pseudonym of Douglas Mackey, who posted memes during the 2016 election that he is accused of using to mislead people about how to vote. One example Volokh described showed a smiling Hillary Clinton, then the Democratic nominee, with text instructing readers to vote from home by typing the word “Hillary” and posting it to Twitter or Facebook with a hashtag between 7:00 a.m. and 9:00 p.m. Eastern on November 8th. Volokh noted that one cannot vote by posting a hashtag, that the instruction was obvious to most people, and that there was at least some reason to think Mackey deliberately tried to mislead a very few people into not voting the legally authorized way, potentially diminishing Clinton’s turnout. Criminal Memes: The Ballad of Ricky Vaughn (2021)
Volokh framed the legal question as two questions: whether the speech could be made illegal, and whether it had actually been outlawed by the statute the government sought to apply. For a prosecution to succeed, he said, both answers had to be yes. His view was 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 another out of money. Broader lies about elections, such as about the size of the budget deficit or the real reason for a government action, are a different matter: Volokh said there is a good argument that such generalized lies cannot be punished, because it is too dangerous to let the government be the arbiter of truth on such things, though he stressed the question is not open and shut, that the Supreme Court has never resolved it, and that lower courts are in disagreement. Criminal Memes: The Ballad of Ricky Vaughn (2021)
The statute actually invoked against Mackey, Volokh said, 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 a right secured by the Constitution. In his view that statute could not be used to outlaw the memes: it was too non-specific, and if read to cover this speech it would be too broad and too vague. He concluded that Mackey should not be convicted, but that he should be convictable if a narrower statute had been enacted or were implemented in the future. Criminal Memes: The Ballad of Ricky Vaughn (2021)
Pressed by Zadek on whether a court could draft a rule excluding political puffery while capturing the voting meme, Volokh said it would not necessarily be difficult. He offered the example of impersonating a government official: it is not generally a crime to lie about whether FBI agents are good or bad, or even to invent their plans, but it is a crime to say “I’m an FBI agent” with a fake badge or to claim the status to gain access. That kind of lie is particularly dangerous and particularly easy to identify, requiring few judgment calls by judges or juries. By analogy, he said, a statute making it a crime to knowingly provide false information about election procedures for the purpose of deceiving people into voting at an illegal time, place, or manner would be narrow, clearly defined, and ought to be constitutional. He noted that some states have similar statutes and that he was quoting in part from the Missouri statute, while preferring to tinker with its wording. Criminal Memes: The Ballad of Ricky Vaughn (2021)
Criminal libel
Later in the same episode, Zadek asked Volokh for the best argument against a well-drafted criminal libel statute — one prohibiting harm to another individual through untrue statements made with the appropriate bad motive. Volokh gave two main arguments. The first is that such a law 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. He sketched a scenario in which a prosecutor targets a political enemy of an ally, derailing a campaign and generating publicity for the opponent, while the prosecutor bears none of the financial cost of a failed prosecution. The second, related point is that libels are so numerous, and will remain so numerous because they are so easy to produce, that any such law would be sharply underenforced, making enforcement turn on whether the prosecutor likes the victim and dislikes the alleged libeler. Criminal Memes: The Ballad of Ricky Vaughn (2021)
Volokh floated a narrower design: limiting a criminal libel statute to statements on matters of purely private concern, leaving public matters to civil liability. He noted the difficulty that the legal system has not done a good job of delineating public from private in a sensible and consistent way. He gave the example of online reviews of a business — a clearly opinionated review cannot be libel, but a review of a doctor alleging overcharging and repeated return visits for bad treatment raises the question whether a prosecutor should act, and whether the decision would turn on the doctor’s access to the prosecutor rather than on who deserves protection. Criminal Memes: The Ballad of Ricky Vaughn (2021)
Zadek responded that The Volokh Conspiracy and Reason are replete with examples of prosecutorial discretion exercised properly and improperly, and that this problem is inherent in criminal law rather than peculiar to speech. Volokh called that a great argument and said it might be right. He described the spectrum among law professors: a large cluster at one end saying criminal libel is ridiculous and no one is prosecuted anymore, essentially no one at the other end calling for its revival, and himself in the middle, wanting to think about it more — recognizing that criminal libel is actually being used and rediscovered, and asking whether it makes sense in certain situations. He said he was open to Zadek’s position but did not think the matter was clear in either direction, 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 enables, letting everyone publish at almost no cost what previously would not have warranted the price of postage or paper — is invoked in the February 1, 2023 episode by guest Will Duffield, not by Volokh, who does not appear in that episode. Duffield contrasts the American position, where the First Amendment prevents politicians from restricting online speech directly, with Germany and Turkey, which have passed laws restricting what people can say online, and describes jawboning as the alternative available to American officials. The excerpts show no development of Volokh’s own position between the two episodes; the later episode cites his idea rather than extending it. The New Face of Government Censorship (2023)
What the sources do not cover
The excerpts do not state the outcome of the Mackey prosecution, the court that heard it, or the name or text of the statute actually charged. Volokh’s earlier life, his writings beyond The Volokh Conspiracy and the Tablet piece, and the founding or ownership of the blog are not described beyond Zadek’s introduction. The 2023 episode contains no statement by Volokh himself, so nothing in it can be attributed to him. The excerpts also break off mid-sentence at several points, leaving the surrounding discussion — including the Colorado Digital Communications Commission bill named in one section heading — unstated.
Episodes
1 appearance, 2021–2021.
- Criminal Memes: The Ballad of Ricky Vaughn (2021) — Technology and Free Speech Law. UCLA Law Professor