anyone pay a price for suppressing freedom of speech? // (John Hinderaker)
Now we know that tech companies conspired with government officials in order to suppress Americans’ freedom speech. Is that legal? Yes! Liberals say that the First Amendment does not apply to private companies. This is the first and only instance in which liberals have allowed private industry such broad discretion. But is this really the end?
Yesterday’s Wall Street Journal featured law professor Philip Hamburger answering the question. He concluded that it was possible to make a case that collusion between private and public actors resulted in a criminal conspiracy to deny Americans their civil rights. This is the relevant criminal statute.
Title 18 U.S. Code Section 241 states: “If two or more people conspire to injure or oppress, threaten, intimidate or threaten any person. . . in the free exercise of any right or privilege granted to him by the Constitution of the United States or due to his having so enjoyed the same. . . They will be fined or imprisoned for not more than ten year, or both.
What could it mean?
Section 241 applies to tech censorship because the First Amendment does not prohibit private parties from suppressing speech. However, Section 241 only applies to government officers who are acting in a conspiracy to violate the Constitution. … The type of suppression most clearly barred by the First Amendment was the 17th-century English censorship imposed partly through cooperative private entities–universities and the Stationers’ Company, the printers trade guild.
Even if it uses private cutouts, the First Amendment still applies to government. If government could use private entities to do its dirty job, there would be no point in a Bill of Rights. In Frost & Frost Trucking Co. v. Railroad Commission (1926), the Supreme Court stated that “It is impossible that guaranties embedded into the Constitution of the United States could be manipulated out to existence.”
More:
Specific intent is another issue in Section 241 prosecutions. However, most tech companies appear to have the intention to cooperate with the government in suppressing speech. A prosecutor would not have to prove that private participants consciously recognized the constitutionality of the government’s actions. It would still be relevant that some private participants acknowledged they were helping the government achieve what might be considered unconstitutional. Renee De Resta, Stanford Internet Observatory, acknowledged that private assistance was necessary because of “very real First Amendment questions” regarding what the government could do on its own. [Ed. [Ed. The observatory is part a consortium called the Election Integrity Partnership that has translated government expectations regarding censorship into specific requests.
This is a good question to answer:
What if the gov-tech alliance to suppress speech isn’t a conspiracy against the enjoyment of freedom of speech?
Is there any chance of criminal charges being brought under Section 241? Evidently not under the Biden administration. A DeSantis administration might take a fresh look if the statute hasn’t expired for some illegal acts. Glenn Reynolds always points out that a conspiracy to deny a tech user his civil rights also creates a civil cause for action. Although I don’t know if anyone has sued on this basis, such suits should be encouraged. Civil suits could be used to recover monetary damages from the malefactors. They would also allow for broad discovery that would complete the record of disgraceful conduct by government agencies and social media platforms over recent years.
