In the Wall Street Journal earlier this week, Columbia Law School’s Philip Hamburger had a characteristically insightful op-ed on the possibility of using the civil-rights conspiracy statute (section 241 of the federal criminal code) to prosecute social-media platforms and law-enforcement agents who collaborate to suppress political speech. That’s what Twitter and the FBI appear to have done in the run-up to the 2020 election: burying news about Hunter Biden’s laptop and its content’s proof of Joe Biden’s connection to the Biden family business practice of cashing in on the now-president’s political influence.
The professor’s idea is an excellent one. It is certainly preferable to the well-meaning but counterproductive calls for a regulatory framework that would have government bureaucrats monitoring communications on social-media platforms.
As he explains, the First Amendment prohibition on speech suppression applies only to government action. Government, however, may not achieve unconstitutional objectives by inducing private parties to do its dirty work. So the civil-rights conspiracy provision could apply against private actors and government officials who collude to accomplish what the government would be forbidden to do on its own.
This is not a novel concept. When I was a prosecutor, for example, it would have violated the Fourth Amendment (at least in a nonemergency situation) for me to cause, say, an FBI agent to search someone’s home without a warrant. To the contrary, if a private person who had access to a person’s residence were to use that access to filch incriminating documents, and then voluntarily disclosed them to a government prosecutor, there would be no constitutional violation. But there’s a catch: If I as the prosecutor encourage the private person to steal the documents and bring them to me, then that violates the Fourth Amendment; under such circumstances, the law would deem the private person to be an agent acting on behalf of the government.
It is true, as Hamburger explains, that a violation of federal rights must be clear in order for it to be actionable under the civil-rights statutes. I don’t think that is much of a hurdle, especially given the Biden Justice Department’s construction of those statutes. For example, in prosecuting the former police officers implicated in George Floyd’s killing, DOJ weaved out of whole cloth previously unknown federal rights, to wit: the supposed rights (a) to have other police officers intervene to stop a use of excessive force by other police officers, and (b) “to be free from a police officer’s deliberate indifference to [one’s] serious medical needs.”
As I’ve argued (see, e.g., here, here, and here), these are not firmly established federal rights (I don’t think they are federal rights at all, even if they are desirable practices); there could thus be significant appellate challenges to the ex-cops’ civil-rights convictions. By contrast, the unconstitutionality of government suppression of free speech is well known and basic. Patently, on its own, the FBI could not have lawfully suppressed the Biden reporting that its agents nudged Twitter and Facebook into suppressing.
The civil-rights laws arose out of the racist abuses of the post–Civil War era. As is reliably the case in Democratic administrations, the Biden Justice Department takes this as license to apply these laws as if they were race-based — i.e., unless the victim of a violation of federal rights is an African American or a member of what the Left deems a properly protected class, prosecutors will not invoke the civil-rights laws. Nevertheless, the statutes are race neutral. What the law requires for prosecution is a deprivation of federal rights, not a particular victim status.
The next Republican administration should use the civil-rights statutes to defend civil rights — meaning everybody’s civil rights.