We know now that tech companies cooperated with government officials to suppress Americans’ freedom of speech. Was that legal? Of course! say liberals: the First Amendment doesn’t apply to private companies. (This is the first and only time when liberals accord such unfettered discretion to private industry.) But is that really the end of the story?
In yesterday’s Wall Street Journal, law professor Philip Hamburger took up the question. He concludes that a plausible case can be made that the collusion between public and private actors constituted a criminal conspiracy to deprive Americans of their civil rights. This is the relevant criminal statute:
Section 241 of Title 18 of the U.S. Code provides: “If two or more persons conspire to injure, oppress, threaten, or intimidate any person . . . in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same, . . . they shall be fined under this title or imprisoned not more than ten years, or both.”
How might it apply?
Because the First Amendment doesn’t bar private parties from independently suppressing speech, Section 241 would apply to tech censorship only if government officers, acting as part of a conspiracy, have violated 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.
Government remains bound by the First Amendment even when it works through private cutouts. There would be no purpose to a Bill of Rights if government could evade it by using private entities to do its dirty work. As the Supreme Court put it in Frost & Frost Trucking Co. v. Railroad Commission (1926), “It is inconceivable that guaranties embedded in the Constitution of the United States may thus be manipulated out of existence.”
The other main issue in prosecutions under Section 241 is specific intent. But most of the tech companies seem to have the specific intent to work with the government in suppressing speech. A prosecutor wouldn’t have to show that private participants self-consciously understood the unconstitutionality of what the government was doing. Yet it would be relevant that some private participants recognized they were helping the government accomplish what in the government might be an unconstitutional act. As Renee De Resta of the Stanford Internet Observatory acknowledged on video, private assistance was necessary because there were “very real First Amendment questions” about what the government could do by itself. [Ed.: Actually, there isn’t any question at all.] The observatory is part of a consortium, the Election Integrity Partnership, that developed government expectations of censorship into specific requests.
This question is an apt conclusion:
If the gov-tech partnership to suppress speech isn’t a conspiracy to interfere in the enjoyment of the freedom of speech, what is?
Is there any prospect of criminal charges being brought under Section 241? Not under the Biden administration, obviously. But if the statute of limitations hasn’t run as to some illegal acts, a DeSantis administration could take a fresh look. Beyond that, a conspiracy to deprive a tech user of his civil rights also gives rise to a civil cause of action, as Glenn Reynolds never tires of pointing out. I don’t know whether anyone has yet sued on that basis, but such suits should be encouraged. Along with the potential for recovery of monetary damages from the malefactors, civil suits would entail broad discovery that would fill in the record of the disgraceful conduct of government agencies and social media platforms in recent years.