Until I read this opinion piece from The Wall Street Journal it wasn’t clear to me that collusion with/pressure by government agents on social media companies like Twitter was an actual Federal crime because I was not familiar with the statute discussed.
Mr. Hamburger has convinced me.
=======================================

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 coconspirators 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-centurystyle 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?

Mr. Hamburger teaches at Columbia Law School and is CEO of the New Civil Liberties Alliance.

LINK

Wouldn't suppression of 2A rights fall under the same prohibition? "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.”

Gotta wonder how Bloomberg looks in orange!

From the few law courses I took at University, I walked away with a concept of “the spirit of the law “.

Whether they’re technically in violation of some legislative edict (coming out of Congress) … I may not really care as I believe the founding documents (BoR) supersede legislation, as is the prima facia rationale for Scotus purview and to be the arbiter of such.

For those following any of the ongoing Twitter releases about how the law enforcement community directly or indirectly caused censorship or promotion of various viewpoints, this is an eyeopener.
I haven't followed it all and mostly don't care to. Doing so isn't really necessary to get the general idea anyway. None of the mainstream media, including conservative leaning networks are giving it a lot of time.

Behind the scenes to most of us, the FBI and others were using their own intelligence, much of it colored by their political preferences, to advise and caution Twitter and others to restrict or ban what they claimed were Russian intelligence or other bad actors. Most often they didn't specifically say the info was 100%, but made it clear there was a high percentage they were giving accurate warnings. Then the powers that be at those media, most who have leftward leanings, took that info along with their own personal bias, as cover to direct the narrative.
I suspect they often did so thinking they were doing the right thing. After all, someone like the FBI implies that you are helping the enemy to do otherwise and it is consistent with your own opinions, you now have cover along with a warm fuzzy feeling that you're doing good work for the country. Not to mention disdain and contempt for those that say otherwise.

Reading some of this also shows that we all need to sometimes step back and carefully examine how we process things. It's easy to go down that trail when we have friends and others in our world around us, that mostly share our opinions and re-enforce our opinions. Part of living in our comfort zone, our own little bubble.

So are any of the purported victims of these actions suing the government and/or the media companies about this. That's the only way to test this concept.

quote:

Originally posted by BBMW:
So are any of the purported victims of these actions suing the government and/or the media companies about this. That's the only way to test this concept.

This is a developing story right now and the concept of individuals suing anyone, much less large government and commercial organizations isn't exactly a simple undertaking. Maybe not even possible.

First you have to question if you have a "right" to fair and impartial information from places like Twitter and other sources that are just presented as a bunch of opinions.

Also consider the victim is the individual that is potentially mislead and makes poor decisions based on those less that accurate stories and opinions.

A more practical takeaway from this is to see how easily this goes off the rails and to question anywhere you get information to form your own opinions and make decisions.

The show Homeland (the season filmed in Germany) ironically opened my eyes to just how effectively a troll/bot army could be used as a political weapon. You can make a fringe viewpoint look mainstream with enough work.

With Homeland their intention was to paint a character who is clearly based off Alex Jones as a right wing nut job but if anything it simply opened my eyes to how fake all of the political shit is online. You can artificially drum up what looks like massive support without actually gaining anywhere near that amount of real supporters.


Anyone who was on social media in the run up to the 2020 election and who was even remotely political could sense the changes. The censorship was heavy handed and unfair. People like Zuck didn’t like that their platform helped elect Trump. The pandemic propaganda online and refusal to tolerate different viewpoints (which later turned out to have validity) was one of the many reasons I banned those platforms from my life.

I hope the truth comes out completely. I have doubt as to whether those who abused their position of power will truly face consequences but I am happy that many of them at Twitter can no longer censor ideas they dislike.

quote:

Originally posted by 220-9er:

quote:

Originally posted by BBMW:
So are any of the purported victims of these actions suing the government and/or the media companies about this. That's the only way to test this concept.

This is a developing story right now and the concept of individuals suing anyone, much less large government and commercial organizations isn't exactly a simple undertaking. Maybe not even possible.

I think Congress is still trying to wrap their heads around this, like the crypto-marketplace and the latest with FTX, lawmakers are in many ways behind the times and are only just now waking-up to the issues that have been created.

quote:

Originally posted by stickman428:
Anyone who was on social media in the run up to the 2020 election and who was even remotely political could sense the changes. The censorship was heavy handed and unfair. People like Zuck didn’t like that their platform helped elect Trump. The pandemic propaganda online and refusal to tolerate different viewpoints (which later turned out to have validity) was one of the many reasons I banned those platforms from my life.

You saw it in the 2016 election where the more savy candidates were quite active online and utilized social media to deliver their pitches; it's when the term 'new media' was generated. Trump won in large part because of social media, he reached a lot more than legacy TV/radio spots could. Before that McCain/Palin were the ones behind the power-curve with social and Obama came on as the 'new face of politics', You Tube became a relevant platform beyond 'interesting videos'

quote:

Originally posted by corsair:

quote:

Originally posted by 220-9er:

quote:

Originally posted by BBMW:
So are any of the purported victims of these actions suing the government and/or the media companies about this. That's the only way to test this concept.

This is a developing story right now and the concept of individuals suing anyone, much less large government and commercial organizations isn't exactly a simple undertaking. Maybe not even possible.

I think Congress is still trying to wrap their heads around this, like the crypto-marketplace and the latest with FTX, lawmakers are in many ways behind the times and are only just now waking-up to the issues that have been created.

quote:

Originally posted by stickman428:
Anyone who was on social media in the run up to the 2020 election and who was even remotely political could sense the changes. The censorship was heavy handed and unfair. People like Zuck didn’t like that their platform helped elect Trump. The pandemic propaganda online and refusal to tolerate different viewpoints (which later turned out to have validity) was one of the many reasons I banned those platforms from my life.

You saw it in the 2016 election where the more savy candidates were quite active online and utilized social media to deliver their pitches; it's when the term 'new media' was generated. Trump won in large part because of social media, he reached a lot more than legacy TV/radio spots could. Before that McCain/Palin were the ones behind the power-curve with social and Obama came on as the 'new face of politics', You Tube became a relevant platform beyond 'interesting videos'

the thought that Congress trying to wrap their heads around this, even if they had pure and honest intentions (they don't ever) is a scary thought.

Besides that, the world is moving so much faster then they can function when dealing with the least partisan and complex issues.

SigFreund, thanks for posting Philip Hamburger's excellent article. I had just finished reading it a few minutes before I saw your post.

For those who are not familiar with the author, he wrote a seminal book a few years ago, Is Administrative Law Unconstitutional? That book has been the foundation for a great deal of discussion among conservatives regarding the degree to which administrative law--in which the administration is judge, jury, and executioner--has destroyed liberty in this country.

A recent article in American Greatness by Glenn Ellmers Hard Truths and Radical Possibilities had as its opening statement "We no longer live in a constitutional republic". I recommend it highly.

An excerpt:

quote:

Elections—and therefore consent and popular sovereignty—are no longer meaningful.

This is the big one, and in a way, everything flows from it. It is helpful to break it down into two discrete pieces.

First, even if conducted legitimately, elections no longer reflect the will of the people.

Set aside for the moment any concerns about outright fraud and ballot tampering. The steady growth of the administrative state since the 1960s means that bureaucracy has become increasingly indifferent to—even openly hostile to—the will of the people over the last half-century. A clear majority of Americans, including Democrats (at least until recently), has been demanding and voting for comprehensive immigration reform, including strict control of the border, for decades. The Republican establishment in Congress—which made its peace with the deep state some time ago—has made numerous promises to fix this problem, and broken them all, always finding a reason for “amnesty now, enforcement later.” The decision about who gets to be part of the political community was the basic principle of popular sovereignty in the founders’ social compact theory. To the degree that the elites have simply ignored the American people on this point, neither the United States as a nation nor its citizens can still be considered a sovereign people.

Of course, that is only one obvious example. In thousands of other ways, the federal bureaucracy ignores the deliberate wishes of the American people. The regulators, administrators, and policymakers in the alphabet soup of federal agencies set the rules and impose their collective will as they see fit. Regardless of who the people repeatedly elect to reform the system, those politicians and their agendas come and go; the permanent government persists.

The reason I posted the article was because although people like Fox news commentators were pointing out that for the government to be involved in censoring legal free speech was a violation of the First Amendment, and yes, I agreed, I could only think, “So?” Elements of the government have violated parts of the Constitution in countless ways, and probably starting before the ink was dry on the document. Any gun owner should know that and therefore know that although such violations sometimes result in someone’s rule or law being slapped down by the courts, that’s virtually always the limit of the consequences to the violators.

As the author points out, the law is seldom enforced, and I suppose that’s why I didn’t even know it existed. Now that I do, and in the unlikely event I ever get into a conversation with a leftist supporter of government agents’ conspiring with Twitter to limit free speech, I will at least be able to point out that it was not only a violation of the First Amendment of the Bill of Rights, but also a criminal offense under the law. I will remember section 241, title 18, of the US Code.

Tucker Carlson had a good piece on this last night

Why were Intel Veterans in Twitters Top Ranks

Link

The thing that scares me about this line of thinking is, what happens now.

Bada-boom, Twitter was guilty of this violation. So let's fine and prosecute it out of existence. Problem solved (for the left) - Musk is gone.

Maybe I'm over-simplifying or looking at it wrong. But I really don't see DOJ going after the individuals responsible. Or maybe I need to loosen my tinfoil hat.