Last week Alejandro Mayorkas, Secretary of the Department of Homeland Security, announced the formation of a “Disinformation Governance Board” (DGB) that will operate under his agency. The DGB’s missions and policies are unknown, and, given the imprecise nature of a federal entity that “governs” “disinformation,” those missions and policies may never be known.
The question, however, does not center on how the DGB will police “disinformation.” Rather, the question is about constitutionally-protected free speech and the criminal and civil punishments for wrongly depriving someone of speech liberty. The U.S. Supreme Court unmistakably articulated more than a half-century ago exactly what speech is not protected, and it is only that unprotected speech that the DGB would have the power to govern. If those on the DGB exceed that power, under federal law they could be individually criminally liable, and they could be individually civilly liable for monetary damages, as would the United States.
Accordingly, those on the Disinformation Governance Board are hereby put on notice.
Based on the 1969 unanimous U.S. Supreme Court case Brandenburg v. Ohio, the only spoken or written words that are not protected under the First Amendment are those “directed to inciting or producing imminent lawless action and [are] likely to incite or produce such action.” The Court in Brandenburg thereby provided a lucid and relatively easily applied demarcation between protected and unprotected speech.
Of all the written and spoken information and disinformation that occurs in our world, the number of instances that would come to a question of unprotected speech for the DGB under this definition would be infinitesimally small. This means that those on the DGB cannot censor someone for “disinformation” unless a reasonable person (other than themselves) would perceive the words as advocating relatively immediate illegal behavior and would be likely to produce those wrongful acts.
Before I discuss possible federal criminal and civil liabilities for illegitimate censorship, it seems instructive to discuss the free speech case that Vandenburg overturned. In 1919, SCOTUS ruled in Schenck v. US that any speech that poses a “clear and present danger” is not free speech. [This is the case in which Justice Holmes declared that the First Amendment is not absolute because, for instance, one cannot falsely yell “Fire!” in a crowded theater.]
Schenck was the Secretary of the Socialist Party of America and had been convicted of violating the Espionage Act because he distributed a pamphlet that criticized the military draft in WW 1—obstructing “recruitment” was illegal under the Act. The pamphlet in no way advocated violence, but SCOTUS affirmed the conviction under their new “clear and present danger” definition of unprotected speech because the pamphlet appeared during wartime. Whether speech is free, according to Schenck, depends on the circumstances.
If the Schenck threshold had not been overturned in Vandenburg, the Disinformation Governance Board, or a similar body of censors, would have almost free reign to do as it pleased, idiosyncratically declaring as unprotected speech virtually anything it wanted under the conditions of a current administration. “Conspiracy theories about the legitimacy of election outcomes are a clear and present danger to democracy” or “White supremacist groups are a clear and present danger to homeland security” come to mind as examples.
The criminal liability for wrongly depriving a person of their protected speech under the First Amendment is found in Title 18 U.S. Code §242, “Deprivations of Rights under Color of Law.” It punishes persons, both federal and non-federal, who act under power of law enforcement (e.g., police, prosecutors, judges, prison guards, voting officials) to willfully deprive a person of a clearly articulated constitutional or other legal right. Freedom of speech is an articulated right, and is plainly defined under Vandenburg.
Under Section 242, if anyone on the DGB (or who acts on its behalf) willfully deprives a person of their free speech rights through federal enforcement powers, either directly or indirectly, they could be subjected to a maximum of a year in federal prison. To be criminal, the action would have to be purposeful and blatant—where the speech in question unmistakably does not promote lawlessness and its likely occurrence.
Whether a given Department of Justice would pursue indictment under 18 USC 242 in such cases remains to be seen, but I see no reason why it should not. There would be no qualified immunity for the DGB because of Vandenburg’s strong conveyance about what constitutes protected speech, and the federal statute of limitations would always remain in force until after a next presidential election.
Regarding civil liabilities, there are provisions for financial redress for rights violations by federal authorities, known as “Bivens Claims.” These provisions allow individual perpetrators and the federal government to be sued for monetary damages associated with violations of civil rights committed by agents of the federal government. Conviction under 18 USC 242 is not a prerequisite for obtaining monetary damages for a rights violation by the federal government, and the burden of proof is a preponderance of the evidence.
Both 18 USC 242 and the Bivens Claim exist to deter those who unlawfully weaponize their legal enforcement powers.
Regardless of what those on the Disinformation Governance Board are going to do, they must wield their authority strictly in accordance with definitions of protected speech in Vandenburg, or face potential criminal and civil liabilities for willful violations of rights and liberties found in the First Amendment and elsewhere.
Gary S. Green, Ph.D. is an academic criminologist and retired Professor of Government at Christopher Newport University in Newport News, VA.
Original Article: https://townhall.com/columnists/garygreen/2022/05/02/bidens-disinformation-governance-board-put-on-notice-of-criminal-and-civil-penalties-n2606611
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Disinformation rolls out of Biden’s mouth everyday. Hs press secretary is even worse!
The very reason the leftists ideology doesn’t work. Denial of reality never fixes any problems. The facts are what Americans live with and the facts show the feckless nature of word games and lies lead to failure after failure. Not one single issue in the Biden administration is functional and the voters know this. The Democrats are ensuring that they will not hold power for decades into the future. Come November the game is up. We The People demand real leadership and not lip service. Time for real government to take over.
They already have the elections rigged, like the last 30 years. As last ng as the vote counting machines are used they(DEMONRATS) will win.
Isn’t this like putting the FOX into the HEN HOUSE or ASKING THE DEVIL TO PRAY FOR YOU?
Jankowicz = Goebbels
She is Disinformation.
Had an ex-wife who acted just like her. Had to get out of that marriage faster than a fire fighter rescuing children out of a burning building.
Well bust my buttons that we need a diimformation ministry just as the nazi and russians had not a sane person wants this demoncratic garbage they want to stay in power.people are waking up wait untill after the elections.
What a scary state of affairs! Disinformation? For goodness sakes, we’ve been inundated by drivel from the leftist commies for almost two year. Biden and his handlers have surrounded themselves with perverts, freaks, and now a would be entertainer! It is my right and privilege as an American to express my opinion, at least verbally, anytime and anyway I choose! This administration has chosen to mimic the obama regime with putting czars in charge of committees! Some of the dumbest policies I’ve ever heard of are being forced on us as a nation, and we find no policies being implemented for really serious problems actually facing this nation like illegal immigration, war in Ukraine, the NEED for more gas production and less push for solar , less plant based anything, etc. I have the answer for the immigration problem, folks:: gather the alligators from Fl, LA, MIss, and drop them in all the rivers along the border. There you go, imagine all illegals will give a second thought to taking a dip to get to the USA!!!
Look no further than China. China owns the DNC lock,stock,and barrel. These democrats do whatever the CCP says,or else.