David Inserra
Senators Ted Cruz and Ron Wyden recently introduced the JAWBONE Act to stop government pressure on and coercion of companies, a pattern known as jawboning. Citing attacks on social media platforms, broadcasters, and other companies from Republican and Democratic administrations, the senators recognize that jawboning is a serious threat to Americans’ speech but that “Americans face significant hurdles in proving these violations.”
To address this problem, the JAWBONE Act proposes two solutions: prohibition and transparency.
Prohibiting Government Coercion
The bill starts by prohibiting government agencies and officials from coercing, or attempting to coerce, broadcasters, interactive computer services, or AI systems to moderate speech in a certain way. It includes exceptions for lawful investigations, warrants, and official use of government accounts or services.
To enforce this prohibition, the bill creates a private right of action allowing individuals to sue government actors in civil court. Government actors bear the burden of proving that their actions were lawful because one of the limited exceptions applied.
If the civil case finds that the government agency or official acted unlawfully, the plaintiff may obtain money as compensation for past violations and to cover their legal fees. The government generally is on the hook for any monetary judgement against the official who took the unlawful action, but that official can be required to personally pay for their own legal fees if the court finds that he or she acted in a willful and wanton manner.
One benefit of creating these remedies and a private right of action is that they help address standing problems. The Supreme Court dismissed Murthy v. Missouri for lack of standing. The government may have tried to jawbone social media companies into removing speech, but it was not clear whether it succeeded—that is, whether social media companies removed speech because of government pressure or because the platforms would have removed that speech on their own. Without a direct, traceable harm, the Court could not find standing.
Furthermore, because government officials and administrations regularly change, those actors are often out of government by the time a legal case reaches a judge. In such cases, courts may be unable to order meaningful redress because ordering a former official or past administration to stop jawboning may do little. This bill addresses these legal issues directly.
As multiple Cato scholars have pointed out, however, the challenge with the prohibition-style approach is getting the details just right. If the law is too strict, lawful and useful government speech may be chilled—for example, government agencies providing helpful information to platforms during an emergency or crisis. But if the prohibition exempts too much government communication, a creative government can continue to jawbone by classifying its speech as fitting one of the allowable exceptions. This law seems to strike a decent speech-protective balance while putting the burden on the government to prove it acted lawfully.
The bill also allows a plaintiff who has brought a civil case against the government to request discovery, i.e., access to a significant amount of internal government records and communications, at a very early stage in the legal process (in response to a motion to dismiss). In one sense, this significant departure from the ordinary flow of federal litigation makes sense—the government may be hiding records that indicate its plans or communications that jawboned a private company, so discovery provides access to those records. But on the other hand, this could allow many jawboning claims to enter discovery before a court has tested their strength, raising the risk of burdensome discovery in speculative cases. A more complete approach would be to create a program that consistently reports government communications that could be jawboning.
Transparency Brings the Receipts
And indeed, the bill does that as well, creating a transparency regime for logging relevant government communications and sharing them with the public and Congress. The director of the National Institute of Standards and Technology (NIST) is instructed to create standards and a process for each agency to record communications from a government agency or employee to a broadcaster or technology company regarding the company’s expression. Those communications will then be collected in a portal managed by the Office of Science and Technology Policy (OSTP) in consultation with the Secretary of Commerce and the Office of Management and Budget.
The director of OSTP will then publish a detailed description of each collected communication on a public website, summarizing its contents and identifying any implied or express requests for content actions. Information may be redacted if it falls into categories protected from publication under the Freedom of Information Act, such as classified information, trade secrets, and medical files. Congress, however, will have access to the full, unredacted records via the chair and ranking member of the House Energy and Commerce Committee and the Senate Commerce, Science, and Transportation Committee. The bill also requires audits of each agency’s participation in the reporting regime.
This approach is similar to one recommended in a Cato paper that was also fleshed out into a bill. The main difference is that the approach recommended by Cato scholars would allow the public to directly read the communications, not just summaries of them. But they also recommend FOIA redactions, leaning on existing law to balance what is made public with what should remain secret or private.
Making government communications with private companies public accomplishes several things. Most simply, it makes Americans aware of what their government is doing. If the government is privately asking platforms to remove or leave up speech, Americans deserve to know about it. Transparency then empowers Americans to pursue legal action, such as the private right of action created under this law. This combination of transparency and punishment creates a strong disincentive for the government to engage in speech that could be viewed as coercive. Shining a light on potential wrongdoing has significant power.
A Worthwhile Effort to Stop Jawboning
Overall, JAWBONE is a strong attempt to limit government pressure on private companies to censor their own or their users’ speech. It creates a private right of action to make it easier to punish even attempted jawboning, and it implements a transparency requirement to bring government communications regarding private speech into the sunlight. JAWBONE could be improved with a more fully public transparency system and a clear punishment for government actors who do not comply with reporting requirements.
But JAWBONE would be a significant shield for Americans’ speech against government coercion.