When the "Marketplace of Ideas" is Shut Down

In 1919, in Abrams v. U. S., Supreme Court Justice Oliver Wendell Holmes tried to explain to the American people why the Founding Fathers opted for freedom of speech and press in the First Amendment, rather than censorship.

"When men have realized that time has upset many fighting faiths, they may come to believe ... that the ultimate good desired is better reached by the free trade of ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out." 

In 1953, another great Supreme Court justice, William O. Douglas, echoed Holmes in United States v. Rumely in 1953:

"These tracts may be the essence of wisdom to some; to others their point of view and philosophy may be anathema. To some ears their words may be harsh and repulsive; to others they may carry the hope of the future. ... Like the publishers of newspapers, magazines, or books, this publisher bids for the minds of men in the market place of ideas.

"The aim of the historic struggle for a free press was 'to establish and preserve the right of the English people to full information in respect of the doings or misdoings of their government.' ... Censorship or previous restraint is banned. ... The [First Amendment's] command that 'Congress shall make no law *** abridging the freedom of speech, or of the press' has behind it a long history. It expresses the confidence that the safety of society depends on the tolerance of government for hostile as well as friendly criticism, that in a community where men's minds are free, there must be room for the unorthodox as well as the orthodox views."

When I was in law school at Notre Dame, one of my professors, Robert E. Rhodes, Jr., opined that our U.S. democracy functions best when small "bureaucracies" vie with each other to gain the public's attention.


If you are not worried about America's direction, you should be. Monopoly is once again rearing its ugly head. Monopoly, the deadly enemy of free enterprise and of the American consumer, is also the mortal enemy of free thought, speech, press and religion


There are certain things our government is barred from doing by our Bill of Rights. It cannot shut down or censor free speech, consistently with the First Amendment. Nor can it establish its favored religion.


But what if, instead of shutting down all criticism itself, it encourages and allows its cronies in the media to do the shutdown or engage in censorship on its behalf?


For over 200 years the American press has wrapped itself with the First Amendment and gloried in printing discordant ideas. Now suddenly in the age of "woke," all ideas and speech that might undermine its own cherish dogmas must be suppressed. The marketplace of ideas is being shut down. The swamp knows best.


But when Facebook, Twitter, the major TV networks and the newspapers deny discordant opinions space on their respective platforms, what does that do to the free speech rights of the American people? Is there a practical difference to our free speech rights if, instead of the government telling the press it cannot print certain stories or opinion, the press voluntarily engages in "conscious parallelism" to suppress the very stories the government would choose to kill?


That "contest of idea" is less likely to exist when the Nexstar Media Group owns 197 TV stations, and controls numbers of others. Or when in the words of Justice Clarence Thomas, when "Google is the gatekeeper between that user and the speech of others 90% of the time. It can suppress content by deindexing or downlisting a search result or by steering users .... Facebook and Twitter can greatly narrow a person’s information flow through similar means."


During the newsboy strike of 1899, Joseph Pulitzer is reputed to have said, "If it's not in the papers, it never happened." When "disfavored" Americans wrote that the Covid virus originated in a lab in Wuhan, China, and/or implied that Hunter Biden and those around him were on the payroll of Communist China, Twitter and Facebook deleted those allegations from their platforms. The mainstream media refused to air them on their TV networks, and refused them space in their newspapers. The justification was that they were "false news" or "denials of science." Very similar justifications were used by Hitler, Stalin and Mao used to destroy free press in their countries.


In 1868, when the first Memorial Day celebrations were held on Arsenal Island — two local little "bureaucracies" — provided very different coverage. The Rock Island Union commended the proceedings. The Rock Island Evening Argus bitterly denounced them. When I was a boy in Chicago, my parents subscribed to the Tribune, the Daily News, the Herald American and the Sun Times. They rarely agreed on anything.

First Published in the Moline Dispatch and Rock Island Argus on June 22, 2021

Copyright 2021

John Donald O'Shea 

Leaders are willing to do what they require of their people

In the United States, government officials normally enjoy either "absolute immunity" or "qualified immunity" against being sued personally for money damages.

In 1982, the U.S. Supreme Court held that the president enjoys "absolute immunity," and cannot be sued for money damages in his personal capacity for his official acts as president.

Members of Congress engaged in the legislative process enjoy similar "absolute immunity."

Without this immunity, they could be sued, like any other citizen, for money damages for their negligent acts. If a jury found that they had failed to use "reasonable care," they could be ordered to pay damages out of their own pockets. Every time they exercised their discretion, even in the best of faith, believing they were acting "reasonably," they could be second-guessed by a jury.

Strip away that immunity, and the president and every member of Congress would be paralyzed out of fear of losing their homes, savings and income.

The Supreme Court has granted them absolute immunity, because without it, every one of them would probably be sued every time they exercised executive or legislative discretion. National laws and executive orders, while they may benefit someone, almost always aggrieve someone else.

So while enjoying "absolute immunity" themselves, President Joe Biden, Speaker Nancy Pelosi, D-California, and Rep.Karen Bass, D-California, support legislation which would abolish "qualified immunity" for police officers.Their justification for this insanity, is that America is a "systematically racist country" and systematic racism is rampant in our nation's police departments.

The Supreme Court created the doctrine of "qualified immunity." It protects police officers "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."

Police officers have been granted "qualified immunity" because it is impossible to write a statute governing every aspect of police conduct — such as an officer's right to use of deadly force. It is impossible to specify exactly when the officer can use deadly force, and how much force he can use.

For that reason, the relevant statute in Illinois in pertinent part reads:

"A peace officer ... is justified in using force likely to cause death or great bodily harm only when he reasonably believes, based on the totality of the circumstances, that such force is necessary to prevent death or great bodily harm to himself or such other person ...."

The statute clearly and necessarily vests the officer with great discretion.

He can use deadly force if he has (1) a reasonable belief (2) based on the totality of the circumstance that (3) such force (4) is necessary.

But without "qualified immunity" his exercise of discretion as to each of the listed four elements, is subject to second-guessing, or de novo review by jurors — every time the officer exercises his discretion. To put it bluntly, without "qualified immunity" police officers will be sued every time they exercise their discretion.

But if you are a policeman, why would you intervene in a situation where you might be required to exercise your discretion and use deadly force, if you know that if you act, you may lose home, savings and reputation?

Without "qualified immunity" it is open season for suits against police officers — even those who did everything perfectly. Whether the officer's use of force was "reasonable" or "necessary" is always a jury question, as is the question, "did the officer take account of all relevant circumstances?"

Years ago, when I was in basic training, a drill sergeant told us that a leader does not ask his men to do things he is unwilling to do himself.

In 1951, the "11 Principles of Leadership" were first published in an Army Field Manual. Here are a few germane excerpts:


    Leaders ... are willing to do what they require of their people.

    Leaders share hardships with their people.

    Set the example — people want and need their leaders to be role models.

    Telling your people you care about them has no meaning unless they see you demonstrating it.


If the principles of leadership mean anything, and if Biden, Pelosi, et al., really believe the police should be stripped of "qualified immunity," let them lead the way and give up their "absolute immunity."

Don't ask your men and women to face personal liability, unless you are willing to risk your own personal wealth.

If this country is "systematically racist," as claimed, fix the problem at the top as well as the bottom. If you believe that every cop — black and white — is a racist, do you really believe Biden and Pelosi, et al., aren't?

First Published in the Moline Dispatch and Rock Island Argus on June 8, 2021

Copyright 2021

John Donald O'Shea 

Which vision to you choose?

By public law, Congress has directed the president by proclamation to annually designate the first Thursday in May as a "National Day of Prayer." This year President Joe Biden became the first known president to issue the required proclamation without mentioning God in it. Was that omission a mere oversight? Is there a God? If not, why pray? Without God, is there any objective good? Or is all "good" relative?

Two Americans have had diametrically opposed views on these matters. Read their words. You decide which road America should take.

American #1 was Dr. Martin Luther King Jr.

"There will be neither rest nor tranquility in America until the Negro is granted his citizenship rights. The whirlwinds of revolt will continue to shake the foundations of our nation until the bright day of justice emerges.

"But there is something that I must say to my people who stand on the warm threshold which leads into the palace of justice. In the process of gaining our rightful place, we must not be guilty of wrongful deeds. Let us not seek to satisfy our thirst for freedom by drinking from the cup of bitterness and hatred.

"We must forever conduct our struggle on the high plane of dignity and discipline. We must not allow our creative protest to degenerate into physical violence. Marvelous new militancy which has engulfed the Negro community must not lead us to a distrust of all white people, for many of our white brothers, as evidenced by their presence here today, have come to realize that their destiny is tied up with our destiny.

"We can never be satisfied as long as the Negro is the victim of the unspeakable horrors of police brutality.

"We can never be satisfied as long as our bodies, heavy with the fatigue of travel, cannot gain lodging in the motels of the highways and the hotels of the cities.

"We cannot be satisfied as long as the Negro's basic mobility is from a smaller ghetto to a larger one.

"We can never be satisfied as long as our children are stripped of their selfhood and robbed of their dignity by signs stating: for whites only.

"I have a dream that one day ... the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood.

"I have a dream that one day even the state of Mississippi ... will be transformed into an oasis of freedom and justice.

"I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.

"I have a dream that one day down in Alabama little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers.

"I have a dream that one day ... the glory of the Lord shall be revealed, and all flesh shall see it together."

American #2 is Saul Alinski, who has become the Apostle of the Left.

"What follows is for those who want to change the world — from what it is, to what they believe it should be. The Prince was written by Machiavelli for the "Haves" on how to hold power. Rules for Radicals is written for the "Have-Nots" on how to take it away."

"In this book we are concerned with how to create mass organizations to seize power and give it to the people. ... This means revolution."

"An organizer ... does not have a fixed truth—truth to him is relative and changing; everything to him is relative and changing. ... We live in a world where 'good' is a value dependent on whether we want it. ... The Haves want to keep; the Have-Nots want to get."

"Life and how you live it is the story of 'means' and 'ends.' The 'end' is what you want, and the 'means' is how you get it. ... The man of action views the issue of 'means' and 'ends' in pragmatic and strategic terms. He has no other problem. He thinks only of his actual resources and the possibilities of various choices of action. He asks of 'ends' only whether they are achievable and worth the cost; of means, only whether they will work."

"[The Have Nots] hate the establishment of the Haves with its arrogant opulence, its police, its courts, and its churches. Justice, morality, law, and order, are mere words when used by the Haves, which justify and secure their status quo."

"One does not always enjoy the luxury of a decision that is consistent both
with one's individual conscience and the good of mankind. The choice must
always be for the latter.

"Action is for mass salvation and not for the individual's personal salvation. He who sacrafices the mass good for his personal conscience ... doesn't care enough for people to be 'corrupted' for them.”

"It is a world ... where men speak of moral principles but act on power principles."

"A leader ... must assume that his cause is 100 percent positive, and that the opposition's is 100 per cent negative."

Which dream is yours? Is there a God? Has he told us what is "good?" Or is "good" "relative?"


Does whatever we "want" become "good?"


What do you choose? Brotherhood? Hatred? Personal corruption for the mass salvation? Do the ends justify the means? Is the opposition always 100% wrong?

First Published in the Moline Dispatch and Rock Island Argus on May 21, 2021

Copyright 2021

John Donald O'Shea 

A warning from Justice Thomas

When he was in office, former-President Trump made great use of his Twitter account. Twitter's rules allow the user who generates the original message to manually block others from republishing it or responding to it.


Trump blocked several users from interacting with his Twitter account. They sued. The Second Circuit held that Trump's comment threads were "public forums" and he violated the First Amendment by using his control of the Twitter account to block the plaintiffs from accessing his comment threads.


On April 5, the Supreme Court of the United States agreed to hear an appeal from the U.S. Court of Appeals from the Second Circuit. Then, in a two-sentence order, vacated the judgment of the Court of Appeals, and directed it to dismiss the case as moot because Trump no longer is president. But what is most interesting about the Supreme Court's two-sentence order, was that Justice Clarence Thomas filed a concurring opinion. It sets out what Thomas feels were important issues not considered by the Court of Appeals.


Thomas' concurrence appears to be either a shot across the bow of Twitter, Facebook, Google and Amazon, or a GPS showing the issues the court wants raised in future cases against the giant digital platforms — or both.


Thomas begins by noting that under its terms of service, Twitter can remove any person from its platform — including the president of the United States — "at any time for any or no reason." But that while Trump blocked several people from interacting with his messages, Twitter permanently removed Trump's account from its platform.

"The disparity between Twitter’s control and Mr. Trump’s control is stark, to say the least. Mr. Trump blocked several people from interacting with his messages. Twitter barred Mr. Trump not only from interacting with a few users, but removed him from the entire platform, thus barring all Twitter users from interacting with his messages."

But if the lower court was correct in holding that Trump could not block certain people from interacting with his Twitter comments because he used Twitter as a public forum, then by what right did Twitter have to bar the president from using that same public forum, and everybody from interacting?


Thomas notes the lower court gave no consideration to that First Amendment issue.


Thomas next opines that the court will soon have no choice but to address how existing legal doctrines apply to "highly concentrated, privately owned information infrastructure, such as digital platforms." He then discusses other important related issues not raised or dealt with by the Second Circuit.



He begins by noting that First Amendment considerations do not normally apply when free speech is stifled by a private party. But he then points out that two classes of private businesses have traditionally been subject to special regulation: "common carriers" and "places of public accommodation." Regulation of those two classes of businesses is traditionally justified either because the private business possesses "substantial market power" or "holds itself out as a common carrier."



The justice then notes that there are clear historical precedents for regulating transportation and communications networks as if they were common carriers. The comparison between the traditional communication networks and today's digital networks is obvious.

"In many ways, digital platforms that hold themselves out to the public resemble traditional common carriers. Though digital instead of physical, they are at bottom communications networks, and they 'carry' information from one user to another."

Given the fact that Facebook has three billion users, and Google Search has a 90% market share, he concludes that "these companies have a substantial market share and no comparable competitors. He notes that one man controls Facebook and two control Google.

"Google is the gatekeeper between that user and the speech of others 90% of the time. It can suppress content by deindexing or downlisting a search result or by steering users away from certain content by manually altering autocomplete results. Facebook and Twitter can greatly narrow a person’s information flow through similar means." 

Thomas further notes even if digital platforms are found not to be "common carriers," legislatures might still be able to treat digital platforms like "places of public accommodation." And he warns, "The similarities between some digital platforms and common carriers or places of public accommodation may give legislators strong arguments for similarly regulating digital platforms."


Finally, he notes that Congress has already given the digital platforms special "immunity from certain types of suits, but it has not imposed corresponding responsibilities, like nondiscrimination, that would matter here."


The digital platforms obtained that immunity from suit by holding themselves out before Congress to be "common carriers."


Free speech in America includes disfavored speech.


Thomas seems to be warning the digital platforms to limit their speech censorship to those few categories of speech that the court has held to be beyond the pale of First Amendment free speech, lest the court intervene.

First Published in the Moline Dispatch and Rock Island Argus on May 7, 2021

Copyright 2021

John Donald O'Shea 

Your Gamble with Biden

Alexandria Ocasio Cortez, the "Modern Monetary Theorists," and now Joe Biden and his Democrat Party are gambling that trillions of dollars can be created out of "thin air" to fund their wishlist of programs — without causing hyper-inflation. They are asking every American who has worked a lifetime to save money to hazard their savings.

From very earlier times, governments have found ways to debase their coinage to benefit the government. A base metal, usually copper, was added to the gold melt. This increased the volume of the melt, and allowed the government to mint more "gold" coins. (The alloy also made the coins more durable).

The earliest "paper money" was what we today would call a "promissory note" — a written
unconditional promise to pay the bearer a sum certain. By the 7th century, merchants in China, who engaged in large commercial transactions, would deposit their money with a banker who would give them his note (a banknote), which required the banker to unconditionally repay the sum stated in the note to the person presenting the note for payment. It was a far more convenient to journey carrying a bank note than to lug about a horde of gold coins. 

In time, governments began issuing their own bank notes. These were also known as "bills," "notes," "paper currency," or "paper money." At first, paper money was backed by the government's promise to unconditionally pay the note in gold or silver. To induce acceptance, the paper money was made "legal tender," — it could be legally used to pay taxes and private debts. 

But with the benefits of paper money, came problems. One of the governmental benefits of using paper money was that it expanded the money supply. Before its use, the government's supply of gold and silver strictly limited the governments ability to coin. If it had a ton of gold, it could only issue a ton of coins -- unless it debased its coinage. But if it debased its coins too much, people wouldn't accept them at full value and inflation resulted.

With paper money, there was no such limit. A government ability to print currency was limited only by its supply of paper and ink. As long at the paper money could be unconditionally exchanged for gold coins, the public had confidence in the paper money. But there was only so much gold. When the face value of the paper money issued, exceeded the value of the gold on hand, then what? The promise to repay "in gold" was replaced by the promise that the paper money was "backed by the full faith and credit of the government." But what happens when so much paper money is printed that the public loses faith in the government's ability to make good its promise? Inflation, or worse hyper-inflation.

To finance our Revolutionary War, the Continental Congress printed paper money — "Continentals." The expression says it all: "Not worth a Continental." The Confederate Dollar fared no better. After WWI, hyperinflation destroyed the Weimar Republic; today it ravages Venezuela.

In the last few months, Presidents Trump and Biden have respectively signed into law "Covid Relief Bills" for $900B and $1.9T. Where will that money come from? What backs it?

Today, to put money into circulation, the government could run the presses, but the job is normally done by the Federal Reserve (the "Fed"). To put money into circulation, the Fed purchases "assets." The Fed is the bank for the bankers. The Fed holds deposits for banks rather like your bank holds the deposits you make. When a bank owns a government bond, the FED can purchase that bond ("asset") from the bank. First, with a computer key stroke, the Fed creates money out of thin air for itself. Then it
uses that key-stroke-made money to buy the bond from the bank. In doing so, it increases the amount of money in circulation.


During the Bank Crisis of the Obama/Bush II years, this is how the Fed saved the banks from their own imprudent investments. It was called Quantitative Easing ("QE"). It caused some moderate inflation — as you can see when you buy groceries.

But if key-stroke money can be used by the Fed to save banks by buying up worthless mortgage-backed securities, why can't it used to fund underfunded State and local pension plans, to rebuild decaying roads and bridges, to finance the Green New deal, and to provide every American a guaranteed monthly income?

Alexandria Ocasio-Cortez and the Modern Monetary Theorists believe key-stroke money can finance their schemes. They ask the American people to make a leap of faith. They assure us that creating hitherto unimaginable deficits will not lead America to hyper-inflation.

Those without savings have nothing to lose. If inflation wipes out all the savings of those who do, so what? The Progressives will have obtained their goal of perfect economic equality — everybody will be poor. This is the gamble you chose to take when you voted for Mr. Biden.

First Published in the Moline Dispatch and Rock Island Argus on April 30, 2021

Copyright 2021

John Donald O'Shea 

A Poorly Thought out Bill

Rep. Curtis Tarver, D-Chicago, has introduced House Bill 1727 in Springfield. His bill would abolish qualified immunity for police officers, and immunity for the governmental bodies that employ them, if the officers deprive any person of "rights" guaranteed in the Illinois Constitution, or fail to intervene to prevent the deprivation.

So what exactly is this qualified immunity that presently protects police officers?

The 1982 U.S. Supreme Court decision Harlow v. Fitzgerald created the rule and remains operative today. Prior to Harlow, a public official enjoyed qualified immunity only if the official believed in good faith that his conduct was lawful, and the conduct was objectively reasonable.

But that rule created a serious problem if there was an allegation that the police officer acted in bad faith. What a person's state of mind was as he acted, is almost always a question of fact. Where a question of fact exists, either party is entitled to a jury trial and full pretrial discovery. The Supreme Court found that these jury proceedings distracted officials from performing their duties, inhibited discretionary action, and deterred able people from entering public service.

For those reasons, the court fashioned the current rule for qualified immunity: "We therefore hold that government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.

"Reliance on the objective reasonableness of an official's conduct, as measured by reference to clearly established law, should avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment. On summary judgment, the judge appropriately may determine not only the currently applicable law, but whether that law was clearly established at the time an action occurred.

"If the law at that time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to 'know' that the law forbade conduct not previously identified as unlawful. Until this threshold immunity question is resolved, discovery should not be allowed.

"If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.

"Nevertheless, if the official pleading the defense claims extraordinary circumstances and can prove that he neither knew nor should have known of the relevant legal standard, the defense should be sustained. But again, the defense would turn primarily on objective factors."

Rep. Tarver's poorly thought-out "bad apple" bill would deprive a police officer who exists to be sent into harm's way of all legal immunities. He could be sued not only for making a mistake, but also for his inaction. And he could be sued, even if he made no mistake, anytime a person he had dealings with believed himself aggrieved.

By the very nature of the job, police officers are the ones who are sent to deal with life-threatening emergencies. The primary purpose of having police officers is to protect the law-abiding citizens from criminals. In almost all cases, that is exactly what they do.

When a woman calls 911 pleading for police assistance because her husband is beating the hell out of her, it is the police officer who is dispatched. When there is a shooting spree in a school, it is the police officer who answers the desperate call. When there is an armed robbery in progress, when an alarm comes in, it is the police officer who responds. Even the speeder is stopped by a cop.

Every one of these situations has the potential for escalation — for the responding officer to be seriously injured or killed. Weekly we hear reports of an officer being shot or killed while responding to a domestic abuse call, an armed robbery, or a school shooting in progress. Even as they issue speeding tickets.

Without qualified immunity, every officer's traffic stop, every arrest, every use of force has the potential of seeing the responding officer facing a jury trial. All that is required is that the aggrieved person makes the allegation that the officer acted with an improper state of mind. A jury trial will probably follow — even if the allegation is entirely baseless.

The chance of the officer being sued is substantially aggravated because he is very often dealing with irrational people, major and minor criminals, and people who hate cops.

Tarver finds the necessity for HB 1727 in the George Floyd case in Minnesota. But Floyd's civil suit was just settled for $27 million, even though the officer enjoyed qualified immunity. So what is the necessity to deprive all good cops of their qualified immunity?

If an officer has to worry about being sued every time he believes he has cause to arrest, or to use force to stop a bar fight, or fire his weapon to stop a school shooting, why would he act? Why would he even take the job?

First Published in the Moline Dispatch and Rock Island Argus on April 9, 2021

Copyright 2021

John Donald O'Shea 

How about a little Equal Justice

Since the Jan. 6 chaotic and criminal invasion of the halls of Congress in our nation's Capitol, the FBI has been diligently and properly investigating who was responsible for the criminal activity.


What bothers me is that other activity over the last couple years has denied other Americans' rights guaranteed to them by our U. S. Constitution's Bill of Rights, and the FBI and Department of Justice have turned a blind eye.


Where are the conspiracy prosecution of groups who have gone about in uniforms and masks on the public streets and highways, destroying, burning and looting businesses and shops and depriving the owners and leaseholders of those entities of their rights under the Fifth Amendment to own property?


Where are the conspiracy prosecutions against Silicon Valley billionaires and their minions who, under the guise of shutting down "unfactual" and/or "untruthful" speech, have taken it upon themselves on Twitter, Facebook and like sites, to police and censor the speech of their fellow Americans, and to deny them the right to exercise their First Amendment rights of free speech and free press on those alleged common carrier public forums?


On the FBI's website, the FBI states that it investigates violations of Title 18, U.S.C., Section 241 - Conspiracy Against Rights.

That statute provides:

"If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District 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; or

"If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—

"They shall be fined under this title or imprisoned not more than ten years, or both;  and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death."


In U.S. v. Guest, the U.S. Supreme Court held that a violation of 18 U.S.C. Section 241 requires proof of "specific intent" to deprive the victim of a constitutional right. But "specific intent" can be inferred from the surrounding circumstances.

A "conspiracy" is an agreement between two or more persona to do an illegal act. That conspiracy becomes criminal when any member of the group does an overt act in furtherance of the conspiracy. Given the agreement, the act of one becomes the act of all. And that agreement — like specific intent — can be proved by circumstantial evidence — circumstances tending to show there was an agreement.

Now consider the language of Section 241: "If two or more persons conspire to ... oppress, ... any person in any State ... in the free exercise or enjoyment of any right ... secured to him by the Constitution ... of the United States ...."

So when an order comes from on high at Twitter to block speech of an American who states an opinion that Covid-19 shut downs are "insane, unconstitutional and based on false science," and that that directive is executed by low-echelon employees, or by an algorithm created by them, why isn't this a Section 241 violation?

There is an "agreement" between the party who issues the order, and the lackeys who execute it, there is a specific intent to limit free speech rights guaranteed by the First Amendment, and there is an "overt act" in furtherance of the agreement/conspiracy. Result: an American citizen is denied his First Amendment rights to speak freely.

Now consider paragraph 2 of Section 24: "If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right ... so secured ...."

How can there be no conspiracy when a gang of thugs gets into "black uniforms," puts on matching masks, and takes to the streets after arranging for the delivery of rocks or incendiary materials to the location of the "protest," and when the weapons are used then by one or more of the similarly attired thugs to destroy property, commit arson, or loot businesses.

The jerks who broke into the Capitol, and wrecked it, richly deserve prosecution. But jerks who conspire to deprive ordinary Americans of their constitutional rights deserve the same attention from the FBI and Department of Justice. Or in America, does only Congress get protection?

First Published in the Moline Dispatch and Rock Island Argus on March 26, 2021

Copyright 2021

John Donald O'Shea