President Donald Trump and his allies rightly condemn the Biden administration's censorial meddling with social media, which sought to suppress constitutionally protected speech that federal officials viewed as dangerous. Trump, who issued an executive order aimed at "restoring freedom of speech and ending federal censorship" on the first day of his second term, promised to end such bullying. Yet he has not been shy about using the influence of his office to restrict speech, as illustrated by his demands that ABC punish late-night comedian Jimmy Kimmel for saying things he did not like.
Sens. Ted Cruz (R–Texas) and Ron Wyden (D–Ore.) have teamed up to offer a more consistent and principled response to the dangers of "jawboning," a form of indirect censorship that operates via government pressure on third parties such as social media platforms and TV networks. On Thursday, Cruz and Wyden introduced the JAWBONE Act, which would allow Americans affected by such pressure to seek damages from officials who exert it.
"JAWBONE" stands for "Justice Against Weaponized Bureaucratic Overreach to Networked Expression." While that reach for an apt acronym is awkward and barely comprehensible, the bill itself makes considerably more sense.
"Holding the government accountable and giving Americans the tools to fight back is essential," Cruz says. "The JAWBONE Act ensures the First Amendment is protected, not undermined." Wyden adds that "nearly all of Americans' speech—including TV news, online streams and social media—flows through private corporations that are highly susceptible to government pressure." Since "regular Americans can't count on those companies to stand up to government jawboning," he says, "they need a way to level the playing field."
A summary of the bill says it would create "a cause of action against any government agency or employee that jawbones companies involved in social media, AI, or broadcasting, regardless of whether the jawboning succeeds." Plaintiffs could seek "money damages and reasonable attorney fees." The bill also aims to increase transparency and accountability by requiring agencies to publicly disclose relevant communications with "social media companies, AI companies, and broadcasters."
The JAWBONE Act has been endorsed by a bunch of civil liberties groups, including the American Civil Liberties Union, the Knight First Amendment Institute, the Center for Democracy and Technology, the Institute for Free Speech, Public Knowledge, Americans for Tax Reform, the Internet Accountability Project, and the Foundation for Individual Rights and Expression (FIRE). The bill "would mark major progress toward addressing indirect and unconstitutional government censorship of Americans' speech," FIRE says.
Beginning with the 1963 case Bantam Books v. Sullivan, which involved implied government threats against distributors of "objectionable" books and magazines, the Supreme Court has held that such "informal censorship" violates the First Amendment. The Court reaffirmed that principle in the 2024 case National Rifle Association v. Vullo, which involved a state regulator's attempts to discourage financial institutions from doing business with the gun rights group. But as illustrated by the outcome in Murthy v. Missouri, which the Court decided a month later, it can be difficult for victims of informal censorship to vindicate their First Amendment rights.
That case involved plaintiffs who claimed their online speech had been suppressed as a result of the Biden administration's crusade against "misinformation" about COVID-19. But the majority, which questioned the asserted causal link, held that none of the plaintiffs had standing to sue, adding that they had not adequately alleged that they were apt to suffer future injuries in the absence of an injunction.
Under current law, FIRE notes, victims of jawboning face several obstacles. First, they may not know their speech was deleted or downgraded because of covert government pressure. FIRE offers an example: Suppose you criticize the IRS on Facebook, triggering a private demand from an IRS official who says, "Delete this user or we're going to start launching tax audits of Facebook executives." Although "your First Amendment rights were violated," FIRE says, "you have no idea it even happened." The JAWBONE Act aims to remedy that problem by requiring disclosure of such communications.
Second, FIRE says, "the government can get away with attempted jawboning when the third party does not act." The JAWBONE Act addresses that issue by allowing lawsuits based on such attempts.
Third, establishing a link between government action and ostensibly private decisions can be challenging, especially when companies that succumb to jawboning are not inclined to cooperate with potential plaintiffs. The JAWBONE Act "makes it easier for plaintiffs to obtain discovery, requiring the government to share more information about their jawboning," FIRE says. "This will help victims prove their case in court."
Finally, when jawboning involves federal officials, the statute that authorizes lawsuits alleging violations of constitutional rights, 42 USC 1983, does not apply. The JAWBONE Act fills that gap by expressly allowing lawsuits against federal officials.
"The JAWBONE Act enforces Americans' First Amendment rights by making clear that the federal government cannot pressure [third parties] to censor speech," says Greg Y. Gonzalez, FIRE's legislative counsel. "Multiple administrations of both parties have engaged in jawboning, reflecting a broad and enduring problem. When federal officials cross this line, the JAWBONE Act ensures they can finally be held accountable. It's a bipartisan solution for a bipartisan problem."
The post Two Senators Offer a Bipartisan Solution to Censorship by Proxy appeared first on Reason.com.
