Government efforts to censor and control speech conveyed by businesses such as social media platforms and over-the-air broadcasters, or generated and enabled by artificial intelligence systems, can occur formally or informally. Formal censorship, which flows from the negotiations and give-and-take of the legislative process, manifests itself as publicly visible, speech-restrictive or speech-compelling statutes that are subject to prompt judicial review and First Amendment challenges.
Informal or “indirect censorship,” frequently called jawboning, is more nefarious. It amounts to what the Cato Institute’s Will Duffield calls “an extraconstitutional method of speech regulation.”
Often occurring in out-of-sight emails, private telephone calls, and closed-door conversations, jawboning involves government agencies and officials applying verbal or written pressure against businesses (often speech intermediaries) to get them to censor or deprioritize speech that’s constitutionally protected yet nonetheless objectionable to the government. I recently wrote that such “[j]awboning violates the First Amendment when government pressure pushes past the bounds of permissible persuasion and enters the realm of illicit coercion, typically via threats of adverse consequences if businesses fail to follow the government’s censorial desires.” As the US Supreme Court held in 2017, “Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors.”
Jawboning is perniciously practiced by officials on both the political left and right when they hold power. For example, jawboning claims against Biden administration officials for allegedly coercing social media platforms during the COVID-19 pandemic to remove and deprioritize conservative-tilting views about mask mandates, lockdowns, and vaccines were central to Murthy v. Missouri. Unfortunately, as I’ve explained, the Supreme Court, “declined to address the substantive merits of the plaintiffs’ jawboning claims in Murthy.” The majority determined “that the plaintiffs––Missouri, Louisiana, and five individuals––all lacked Article III standing to seek a court order (a preliminary injunction) barring the officials from engaging in such conduct in the future.”
The shoe now is on the other foot. Jawboning claims against Trump administration officials being made in cases such as Rosado v. Bondi and Aaron v. Bondi involving government pressure on online businesses to remove lawful speech about (or applications that convey) public sightings of US Immigration and Customs Enforcement officers. Furthermore, Federal Communications Commission Chairman Brendan Carr has been accused of jawboning broadcasters, including ABC and the owners of its affiliated stations after Jimmy Kimmel made a remark on his show regarding Charlie Kirk’s assassination. Carr threatened:
Frankly, when you see stuff like this—I mean, we can do this the easy way or the hard way. These companies can find ways to change conduct and take action, frankly, on Kimmel, or there’s going to be additional work for the F.C.C. ahead.
Carr’s comment drew the ire of US Senator Ted Cruz (R-Texas), with Cruz calling it “dangerous as hell” and “right out of a mafioso coming into a bar going, ‘Nice bar you have here, it’d be a shame if something happened to it.’” Recognizing that what goes around comes around when a party that’s currently in power no longer has it, Cruz added that “if the government gets in the business of saying we don’t say what you the media have said, we’re going to ban you from the airwaves if you don’t say what we like, that will end up bad for conservatives.”
What’s to be done about coercive jawboning? Cruz and Ron Wyden (D-Ore.) last week introduced Senate Bill 4749, the “Justice Against Weaponized Bureaucratic Overreach to Networked Expression Act” (JAWBONE Act).
It targets “coercion or attempted coercion” by government agencies and employees that:
(1) is directed at social media companies; broadcast (television and radio) station licensees, operators, owners, and networks; and providers of artificial intelligence systems such as chatbots that generate and enable speech, and (2) aims to add, alter, or remove information, programming, or generated speech.
Lawsuits. The Act creates a federal cause of action for victims of coercion or attempted coercion, including posters of content on social media platforms, that allows for compensatory damages and injunctive relief, as well as reasonable attorney fees and litigation costs. Importantly, they can win a lawsuit against a government agency or employee even if the attempted coercion failed to change the targeted information or content. State attorneys general also can sue on behalf of their states or individual citizens.
Transparency. The JAWBONE Act addresses the secretive, non-public nature of much coercion. It establishes a portal where government agencies and employees must log summaries of certain communications with the targeted businesses described above and creates a public website where people can view this information to see if they might be jawboning victims.
If the JAWBONE Act ultimately becomes law, it won’t cure the coercive, censorial proclivities of some agencies and officials. It would, however, constitute a significant stride forward in battling their bullying tactics.