Government involvement in social media censorship is a scandal, to be sure, but is it a crime? Prof. Philip Hamburger of Columbia Law explores the possible application of 18 U.S.C. § 241 in this op-ed in the WSJ.
Section 241 was originally enacted during Reconstruction to protect the civil rights of the freedmen against the Ku Klux Klan and other vigilante groups. President Grant signed the precursor into law on April 20, 1871. The current statute 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.”
What about the state action requirement for the First Amendment to apply? Hamburger argues:
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.
It is an interesting idea, but of course it is moot for the remainder of the Biden Administration. “The current administration won’t entertain such a theory, but a future one might.”