Mackey tried to get the case thrown out in district court last month, arguing that his tweets were satiric and First Amendment–protected. His motion to dismiss was denied. Judge Nicholas G. Garaufis wrote, “This case is about conspiracy and injury, not speech….As applied within the Indictment, this law is used to prosecute a conspiracy to trick people into staying home from the polls—conduct effectuated through speech—not a crime particular to the utterances made to effect that aim.”

Aaron Terr, an attorney at the Foundation for Individual Rights and Expression, disagrees. “The First Amendment presumptively protects all speech unless it falls into a specific, narrowly defined category established by the Supreme Court. And the First Amendment doesn’t make a general exemption for false speech,” he says.”There are certain types of false speech that are established exceptions to the First Amendment, such as defamation or fraud,” but Mackey’s speech clearly doesn’t fall into either category.

Eugene Volokh, a professor at UCLA School of Law, suggested in a recent Tablet article that “narrow and clearly defined statutes that prohibit lies about the mechanics of how to vote are likely constitutional,” but he also noted that “there is no such clear and narrow federal statute” in Mackey’s case. He added that when similar issues have appeared in court, judges have generally been “quite skeptical about general bans on lies in elections.”

[Color me skeptical as well. This appears to me to be a way to reverse-engineer legitimacy to the FBI, DoJ, and DHS efforts to censor speech on social media platforms. To quote Meg Ryan in the underappreciated “Joe Versus the Volcano”: Well, Joe, I think you’re going to find out. — Ed]