Is Social-Media Censorship a Crime? If tech execs cooperated with government officials, it might be a conspiracy against civil rights. By Philip Hamburger
Amid growing revelations about government involvement in social-media censorship, it’s no longer enough to talk simply about tech censorship. The problem should be understood as gov-tech censorship. The Biden White House has threatened tech companies and federal agencies have pressed them to censor disfavored opinions and users. So it’s time to ask about accountability.
Will there be legal consequences for government officials, for the companies, or for their personnel who cooperate in the gov-tech censorship of dissent on Covid-19, election irregularities or other matters? Cooperation between government officials and private parties to suppress speech could be considered a criminal conspiracy to violate civil rights. The current administration won’t entertain such a theory, but a future one might.
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.”
This post-Civil War statute responded to the depredations of the Ku Klux Klan and similar private organizations. Then as now, government officers sometimes relied on private allies to accomplish what they couldn’t—sometimes violently, sometimes more subtly. Whether for government officers or cooperating private parties, Section 241 makes conspiracy to violate civil rights a crime.
Section 241 was long applied cautiously—for instance to protect against involuntary servitude and abuses of detained persons. But now it is being applied more expansively. Last year a federal grand jury indicted Douglass Mackey under Section 241 for allegedly interfering with the right to vote by coordinating with four unindicted co-conspirators to distribute memes claiming that voters could cast ballots for Hillary Clinton via text message or hashtag. (Mr. Mackey protests that his memes were satire and thus constitutionally protected speech.)
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. Doctrine on Section 241 requires this underlying constitutional violation to be clear. But clarity isn’t elusive. 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 First Amendment’s text confirms the unconstitutionality of such workarounds. Any “prohibiting” of the free exercise of religion violates the amendment. In contrast, a mere “abridging” of the freedom of speech is unconstitutional. The government thus violates the latter merely by abridging or reducing it.
Little coercion or even economic pressure is necessary for a free-exercise violation. But free-speech violations, at least according to the text, don’t need even a gentle prohibition.
The history, logic and text underscore the unconstitutionality of returning to 17th-century-style censorship through private cooperation. The violation is all the clearer because tech cooperation often occurs in the shadow of explicit or hinted government threats—say, to tighten tech’s regulatory framework.
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. The observatory is part of a consortium, the Election Integrity Partnership, that developed government expectations of censorship into specific requests.
None of this is to predict what courts will do with criminal charges under Section 241. Nor is it to say that the next administration would or should bring conspiracy prosecutions. That will depend on the administration and the particulars of each case. But at least some those involved in the censorship—whether in government or the private sector—may eventually face sobering legal issues.
Such accountability is constitutionally desirable—not for reasons of retribution but because without accountability, the censorship will persist. The platforms probably will reassure their directors, officers and censorship review-board members that there’s little to worry about. That may turn out to be correct. Section 241 is sufficiently broad that prosecutors should hesitate to pursue it in marginal cases.
But there’s nothing marginal about the most massive system of censorship in the nation’s history. If the gov-tech partnership to suppress speech isn’t a conspiracy to interfere in the enjoyment of the freedom of speech, what is?
Government officials have little excuse. And after this fall’s revelations—ranging from the portal for Homeland Security censorship requests to the FBI’s role in suppressing information about the Hunter Biden laptop—company employees can no longer plead ignorance about government involvement. As for the companies, they have been saying the censorship is their editorial choice—so can they now avoid the problem by saying they buckled under threat?
The companies and individuals involved in the censorship need to decide where they stand. Perhaps it is time for them to distance themselves from the censorship. Are they comfortable with a conspiracy to violate civil rights? Even if that doesn’t bother them, are they willing to risk prosecution? They may assume, with some justification, that the Justice Department will hesitate to prosecute, even in a future administration. But would you bet the farm on that?
Mr. Hamburger teaches at Columbia Law School and is CEO of the New Civil Liberties Alliance.
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