How Clever Governments Avoid Constitutional Scrutiny

Has anyone noticed that the threat of an "imminent" lawsuit by Dominion Voting Systems' CEO against attorney Sidney Powell for promoting "falsities" in the context of her attempts to expose fraud in the 2020 presidential elections is a clever attempt to de facto nullify people's First Amendment right "to petition the Government for a redress of grievances"?

If not, then here is an insight that may help to institute a preventive measure against such a nullification.

First, here are the facts.

According to the U.S. Constitution, state governments and their designated officers have a responsibility to administer presidential elections.  The Petition Clause of First Amendment protects "the right of the people ... to petition the Government for a redress of grievances."  In particular, it allows the people to sue the government for alleged fraud in elections.

Those who sue or otherwise complain cannot be retaliated against by the respective governments as they are protected by a legal doctrine based on the concept of "chilling effect."  In such a context, "a chilling effect is the inhibition or discouragement of the legitimate exercise of natural and legal rights by the threat of legal sanction" (a quote from Wikipedia).  Federal courts on several occasions concluded specifically that if a governmental action may cause a "chilling effect" on people's exercise of their First Amendment rights, then such an action violates their right to such exercise and constitutes a violation of the First Amendment.  Later, the 14th Amendment, by virtue of the so-called "incorporation doctrine," extended all the protections mentioned above against state and local governments.

Thus, a government (federal, state, or local) cannot, according to the legal doctrines outlined above, sue or threaten to sue the people for their "petition[ing] the Government for a redress of grievances" — in particular, for suing the government for alleged election fraud or complaining about it.

But there is a clever trick that some governments may resort to in order to accomplish a de facto "chilling effect" without violating "de jure" the First Amendment.  A government can hire a private entity — for instance, an election hardware company such as Dominion Voting Systems — to carry on some of its constitutional duty to collect, count, and tabulate votes during presidential elections.

Now, if the people suspect that there was an intentional fraud or an irregularity that facilitated the fraud that took place during such collecting, counting, and tabulating of votes, by means of third-party software that was designed to change the election results, then they have to direct their grievance not against the government, since the government was not the one that ran the election machinery, so it could not have possibly committed or facilitate fraud during such activities, but against the election hardware company, such as Dominion Voting Systems, because it was that company that had provided the hardware that ran the machinery in question.

Not surprisingly, Dominion Voting Systems announced that its "legal team is preparing a lawsuit against Powell," who was among most vocal complainants about the alleged election fraud and Dominion Voting Systems' part in it.  (Interestingly its CEO avoided stating under oath that his company has not committed any of the alleged wrongdoings in 2020 elections.)  As absurd as it might appear, this threat of legal sanction does not violate the First Amendment per se because Dominion is not a governmental agency and its actions are not restricted by First Amendment, even under the "incorporation doctrine" of the 14th Amendment.  So, even if the said threat by Dominion's CEO clearly causes a "chilling effect" on present and future exercise of people's right protected by the Petition Clause, as it clearly does, the legal restrictions against it does not apply in this case.

Pretty clever, isn't it?

Here is my suggestion of a simple remedy that the courts can impose in order to eliminate this kind of inhibition or discouragement of the legitimate exercise of people's right to petition their governments for the redress of their grievances.

The courts can declare that if a government or its agency outsources some of its constitutional duties to a private entity, then all constitutional protections that the people may have against government's actions related to the duty in question automatically extend on the actions of the private entity in this respect.  That would make it illegal for Dominion or its legal representatives to sue any citizen for complaining about the election fraud perpetrated or facilitated by Dominion or its election machines.

Will the courts do so?  I certainly hope so, although knowing their disappointing and — arguably — unlawful reluctance to engage in fact-finding in the election fraud lawsuits, it is not clear if they will.

People's vocal expression of their desire to have such protection instituted may help the courts to reach the right conclusion, but the courts seem to have a distinctively selective sense of what part of the public to listen to while deliberating on the cases before them.  For instance, BLM and Antifa seem to have a definitely greater impact on courts' rulings than the opinions of law-abiding citizens complaining about election abnormalities (like, for instance, disparate impact) and irregularities.  However, if We the People keep our grievances to ourselves and do not voice them, then, most likely, nothing will change in these matters, and the governments will keep finding clever and cleverer means of getting around constitutional restrictions that the First Amendment and other laws of the land impose on them.

Mark Andrew Dwyer's recent columns are posted here and here.  Links to his other commentaries can be found here.

Image: geralt via Pixabay, Pixabay License.

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