Since more and more evidence of government involvement in social-media filtering is emerging, it is no longer sufficient to argue about tech restriction alone. The issue is best viewed as state-level technological censorship. The Biden administration has pressured tech businesses to block unpopular content and users with threats and pressure from federal agencies. The question of who is responsible next is therefore necessary.
Will government officials, corporations, or employees that aid in the gov-tech censorship of criticism regarding Covid-19, electoral irregularities, or other topics face legal repercussions? It’s possible that a criminal conspiracy to violate civil rights has taken place when government officials and private parties work together to stifle free expression. A future administration is more likely to consider such an idea than the current one.
Any two or more people who “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,” as stated in Title 18, Section 241, “shall be fined under this title or imprisoned for not more than ten years, or both.”
After the atrocities committed by the Ku Klux Klan and other private groups, this post-Civil War law was passed. Government officials then, as now, would occasionally rely on private supporters to accomplish what they could not, whether via violence or more subtle means. The violation of civil rights by a group of people, whether they be government officials or cooperating private citizens, is a criminal under Section 241.
For a long time, Section 241 was used cautiously, for example to prevent involuntary slavery and detainee mistreatment. Its scope of use has broadened, though. Douglass Mackey was indicted by a federal grand jury last year under Section 241 for alleged interference with the right to vote. The indictment stems from allegations that Mackey conspired with four others who were not charged with any wrongdoing to spread memes suggesting that voters could vote for Hillary Clinton via text message or hashtag. Mr. Mackey claims his memes were satire and therefore protected by the First Amendment.
Due to the fact that the First Amendment does not prohibit private parties from independently suppressing expression, Section 241 would only apply to technological censorship in the event of a conspiracy by government officers to violate the Constitution. Section 241 doctrine necessitates the visibility of this underlying constitutional infringement. On the other hand, understanding is not elusive. The English censorship of the 17th century, which was administered in part through cooperative private groups like universities and the Stationers’ Company, a printers’ trade guild, is the clearest example of the type of suppression prohibited by the First Amendment.
Even when the government uses private intermediaries, it must comply with the First Amendment. If the government could circumvent the Bill of Rights by hiring private companies to do its bidding, the document would be meaningless. It is impossible that guarantees enshrined in the Constitution of the United States may so be twisted out of existence, the Supreme Court said in Frost & Frost Trucking Co. v. Railroad Commission (1926).
The language of the First Amendment itself confirms that such maneuvers are unconstitutional. The First Amendment protects people’s right to “freely” practice their religion without government interference. A simple “abridging” of the right to free expression, on the other hand, is unconstitutional. If the government limits or restricts the latter, it is in violation of the former.
Freedom of expression can be violated with relatively little force or even financial pressure. However, free speech offenses don’t even require a mild limitation, at least according to the text.
Private cooperation in the style of censorship common in the 17th century is unconstitutional, as is the historical precedent, the logic, and the text. Because government threats, either direct or implied, such as a tightening of tech’s regulatory environment, frequently accompany tech cooperation, the violation is all the more glaring.
For charges under Section 241, particular intent is another major factor. However, most IT firms appear to be motivated by a desire to collude with the state in repressing free expression. Prosecutors wouldn’t need evidence that individuals knowingly participated in an unconstitutional government action. However, the fact that certain private actors understood they were assisting the government in carrying out what could be an unconstitutional act on the part of the government would be significant. Private aid was required because of “very substantial First Amendment problems,” as Renee De Resta of the Stanford Internet Observatory put it in a video. The observatory is associated with a group called the Election Integrity Partnership, which formulated censorship demands on behalf of the government.
None of this should be construed as a prediction of how the courts will rule on criminal charges brought under Section 241. Neither is it implied that the incoming government will or even should pursue conspiracy charges. The answer to that question lies in the hands of the administration, in addition to the specifics of each individual instance. Censors, whether in the public or commercial sector, may eventually face serious legal consequences.
This kind of accountability is constitutionally desirable, not because of any desire for vengeance, but because the censorship will continue if it is not instituted. The platforms will likely tell their board members, executives, and censorship review panelists that there is no need for alarm. It’s possible that will be the case. Because of its vast scope, Section 241 should make prosecutors wary about pursuing weak charges.
To the contrary, the largest censorship program in the country’s history is everything but a minor issue. What else could the government’s alliance with internet companies to stifle free speech possibly be called if not a conspiracy to abridge the right to freely express oneself?
The government authorities involved have no reasonable excuse. Employees may no longer claim they did not know about the government’s engagement in the company after the revelations this fall, which included everything from the portal for Homeland Security censorship requests to the FBI’s role in censoring information about the Hunter Biden laptop. However, the firms have maintained that the restriction is the result of editorial decisions; can they now shirk responsibility by claiming they bowed to pressure?
Businesses and individuals taking part in the censorship debate must take a side. They should probably stop being so cozy with the censors. Do they feel okay with a group working together to undermine human rights? Do they care enough to risk arrest and prosecution if they know that? They might reasonably anticipate that the Justice Department won’t rush to bring charges even under a different president. But are you willing to put everything on that?