A federal court on Wednesday barred Jack Burkman and Jacob Wohl from making additional robocalls before Election Day. The conservative hoaxers were also ordered to notify every single recipient of their first robocall and tell them that the recorded message was both false and illegal.
Senior U.S. District Court for the Southern District of New York (SDNY) Judge Victor Marrero, a Bill Clinton appointee, issued a blistering 66-page opinion and order accusing Burkman and Wohl of engaging in “electoral terror” and comparing their racist campaign to intimidate Black voters in Michigan and New York to the bygone efforts of the Ku Klux Klan.
“The right to vote embodies the very essence of democracy,” the opinion begins. “Absent free and fair elections uninfluenced by fear, the underpinnings of democratic rule would crumble. The United States Constitution, as enforced by Congress and the courts, enshrines these principles.”
Judge Marrero then outlined the relevant law:
In 1871, Congress, in a measure designed to safeguard the right to vote constitutionally guaranteed to all eligible United States citizens, enacted the Ku Klux Klan Act. Historically, that statute derived from the harm experienced by newly emancipated and enfranchised former slaves. Seeking to cast their votes in federal and state elections, they encountered, at home and at the polls, blatant intimidation carried out by open threats, economic coercion, and even physical violence inflicted to prevent their participation in the nation’s electoral process.
“Today, almost 150 years later, the forces and conflicts that animated Congress’s adoption of the Ku Klux Klan Act as well as subsequent voting rights legislation, are playing out again before this court, though with a difference,” the opinion continues. “In the current version of events, the means [Burkman and Wohl] use to intimidate voters, though born of fear and similarly powered by hate, are not guns, torches, burning crosses, and other dire methods perpetrated under the cover of white hoods. Rather, [Burkman and Wohl] carry out electoral terror using telephones, computers, and modern technology adapted to serve the same deleterious ends.”
The National Coalition on Black Civic Participation (NCBCP), which brought a lawsuit in Manhattan Federal Court against the alleged fraudsters in late October, asked for the temporary restraining order in a lawsuit accusing Wohl and Burkman of violating the Voting Rights Act of 1965 and the Ku Klux Klan Act of 1871.
According to the NCBCP’s 23-page complaint, Burkman and Wohl mounted a racist “disinformation campaign” against Black voters in urban areas by inundating them “with robocalls containing blatant lies about mail-in voting in order to intimidate those voters into not exercising their right to vote in the November 3, 2020 election.”
The call, recorded by a woman identifying herself as “Tamika Taylor,” falsely claimed that “if you vote by mail, your personal information will be part of a public database that will be used by police departments to track down old warrants, and [will] be used by credit card companies to collect outstanding debt.”
Relying on well-founded fears within the Black community that the U.S. government is keen to engage in human experimentation in general and Black people in particular, the robocall also falsely said that the Centers for Disease Control and Prevention would use mail-in voting data “to track people for mandatory vaccines.”
The decision accounts for the reach of the Burkman-Wohl robocall campaign and its racist design:
Plaintiffs estimate that approximately 85,000 robocalls conveying this message have been placed to date. The calls targeted areas with large populations of Black voters, such as Detroit, Michigan, as well as urban areas with significant minority populations, such as New York City. Defendants denied that the calls targeted any racial demographic in particular, and they even claimed that they do not know how to target a robocall to particular demographic groups. The Court finds Defendants’ statements on that point lacking in credibility in light of other admissions they made. Specifically, Burkman explained at the October 26 hearing that robocalls are issued by randomly selecting phone numbers within particular area or zip codes. Given the technical feasibility of targeting calls to particular geographic areas, and generally known information about social and economic residential patterns in this country, it is not difficult to discern how particular demographic groups can be targeted through robocalls.
Law&Crime previously reported on the robocall after Michigan authorities began investigating the voter suppression tactic in late summer. Authorities there eventually charged Burkman and Wohl with multiple felony counts punishable by 24-year jail sentences.
Wohl represented himself in the NCBCP’s civil case in federal court earlier this week—which evidently didn’t go too well.
Judge Marrero thundered:
[Burkman and Wohl] do not contest that they originated the robocalls. In fact, by their own admission in other public statements they reportedly made, they have worked overtly to influence potential voters through disinformation campaigns. Instead, as legal ground for their action, [Burkman and Wohl] advance a sinister and pernicious theory. They contend that the expression their robocalls communicated constitutes speech protected by the First Amendment. [This] theory implicates a fundamental threat to democracy. This court thus rejects it as justification for [their] baneful conduct. The First Amendment cannot confer on anyone a license to inflict purposeful harm on democratic society or offer refuge for wrongdoers seeking to undermine bedrock constitutional principles. Nor can it serve as a weapon they wield to bring about our democracy’s self-destruction.
The NCBCP’s legal team hailed the decision.
“New technologies make it easier for people to connect, but we must enforce and enhance our civil rights laws to protect all Americans from the racism and terror that flows from the weaponization of these technologies,” said David Brody, lead attorney for the Digital Justice Initiative at the Lawyers’ Committee for Civil Rights Under Law. “This ruling upholds the sanctity of our election, and ensures that no other voter will be threatened by the actions of these two individuals. Voting is a sacred civic duty that all Americans must be able to participate in, without any fear, intimidation, or distress.”
“We are gratified the judge acted swiftly to put a stop to this despicable, racially-motivated campaign to discourage voters from casting their ballots in the upcoming presidential election,” added private attorney Amy Walsh. “Those who do so threaten the stability of our country and the rule of law.”
Wohl’s attorney David Schwartz declined to comment on the ruling but told Law&Crime that the defense planned to make additional filings shortly.
Read the full opinion here.
[image via screengrab/NBC News]
Editor’s note: this story has been amended post-publication to include a response from the defendants’ attorney.