Wyden And Cruz Team Up On A Bill To Stop Government Jawboning. It’s… Actually Pretty Good?

from the free-speech-is-a-good-thing dept

Senators Ron Wyden and Ted Cruz have released the JAWBONE Act (“Justice Against Weaponized Bureaucratic Overreach to Networked Expression Act”) as a way to prevent government suppression of speech. While some of the premises behind it are silly and nonsensical, the actual law is not bad. Of course, if it became law, the Trump admin would face a bunch of lawsuits over it, but we’ll leave that aside for now.

For much of the Biden administration there were misleading (and often downright false) claims that administration officials were pressuring social media companies to suppress content online, which has been generally called jawboning (for historical reasons not worth getting into). It can be a real issue, as government officials across the political spectrum often do seem eager to silence speech they dislike. And while the First Amendment should prevent that, there are limited remedies for those who are victims of it.

However, in the legal sense, jawboning, dating back to the famous Bantam Books case and evolving through the Murthy vs. Missouri case, has tended to focus on the important distinction between the government trying to persuade intermediaries to allow or suppress certain speech vs. attempts to coerce. The coercive version crosses the First Amendment boundary. The persuasive version is allowed, as it involves political speech on its own.

I still think one of the best efforts to lay out this distinction was not at the Supreme Court, but by Judge Richard Posner in Backpage v. Dart. That was the case where Cook County Sheriff Thomas Dart sent letters on his official letterhead telling credit card companies they needed to stop working with Backpage or else. Backpage sued, and Dart tried to argue that he was just using his personal First Amendment rights to express his opinion to the credit card companies. Judge Posner pointed out that this was nonsense, and the clear intent in the letters was to threaten them with legal consequences as a government law enforcement agent.

Posner highlights that Dart not only sent the letter on his sheriff’s letterhead, but opened by identifying himself as “the Sheriff of Cook County,” used the legal language of “cease and desist,” and later suggested that the credit card companies “willfully play a central role” in criminal activity by allowing Backpage to use their services. As Posner notes, this is not just an official expressing their personal opinion. There’s a clear coercive threat involved:

And here’s the kicker: “Within the next week, please provide me with contact information for an individual within your organization that I can work with [harass, pester] on this issue.” The “I” is Sheriff Dart, not private citizen Dart— the letter was signed by “Thomas Dart, Cook County Sheriff.” And the letter was not merely an expression of Sheriff Dart’s opinion. It was designed to compel the credit card companies to act by inserting Dart into the discussion; he’ll be chatting them up. Further insight into the purpose and likely effect of such a letter is provided by a strategy memo written by a member of the sheriff’s staff in advance of the letter. The memo suggested approaching the credit card companies (whether by phone, mail, email, or a visit in person) with threats in the form of “reminders” of “their own potential liability for allowing suspected illegal transactions to continue to take place” and their potential susceptibility to “money laundering prosecutions … and/or hefty fines.” Allusion to that “susceptibility” was the culminating and most ominous threat in the letter.

That’s what coercion looks like. And despite what MAGA folks (including Ted Cruz) insist, none of that was present in the Biden admin requests regarding social media. There were certainly a few instances that appeared to get pretty close to the line, but even the very conservative MAGA-pilled Supreme Court repeatedly pointed out that there was “no evidence” they could find of the administration crossing that line against the plaintiffs in Murthy, and thus they had no standing to sue.

Of course, if you look at the level of jawboning happening now in the Trump administration, it’s quite incredible and way beyond even what they (falsely) accused Biden of doing. Almost every day we see yet another story of someone in the Trump admin threatening intermediaries to suppress speech.

So, given that backdrop, the JAWBONE Act (silly backronym aside) comes at an interesting time. While in theory the First Amendment already protects against such activities, it’s quite difficult to get your full day in court. So the new bill gives apparent victims of jawboning a direct cause of action, allows for early discovery to try to prove that they were targets, and allows cases to live on after officials involved are out of office. It also would require “transparency” regarding certain government communications with media companies.

The good part of the law is that it makes it clear this is about coercion:

Except as provided in paragraph (2), it shall be unlawful for an agency, or an officer or employee of the United States under color or pretense of office or employment, to coerce or attempt to coerce a broadcaster, a provider of an interactive computer service, or a provider of an artificial intelligence system within the United States (including the territories of the United States) for the purpose of, or if a reasonable person would understand the coercion or attempted coercion to be for the purpose of, incentivizing the broadcaster or provider to take a content action.

Because Cruz and the MAGA crew are absolutely certain that the Murthy case would have gone differently if only the government had been forced to share details, it includes a “pre-trial motion for limited discovery.” Of course, in Murthy there was a ton of discovery… which turned up absolutely nothing (hence the Supreme Court ruling). So, if anything, this will allow for any crackpot to sue government officials claiming they were censored and require the government to go through extra discovery. But, well, it’s the government. They can handle that.

The requirement for making communications between government officials and covered platforms available isn’t bad, per se, but seems like it may be a compliance headache. Though it would also show that most communication between platforms and government is not some cloak and dagger censorship nonsense but pretty standard information exchanges. And we already know how some of this will go, since whenever there is communication with an agency like the FCC it’s supposed to be publicly reported, leading to a flood of pointless filings almost no one reads any time anyone meets with an FCC Commissioner. It’s fine, but it’s just more paperwork.

Of course, the likelihood of this ever becoming law is slim, given that the impact would be a ton of lawsuits against the Trump administration and its many officials who seem to think their only purpose is to jawbone in pursuit of suppressing any speech critical of MAGA.

On the whole, though, it’s a reasonable bill, even if Cruz’s support is based on a total misreading of what happened in the Murthy case. The government shouldn’t be in the business of coercing intermediaries into suppressing speech, and if a bill like this helps make that a reality, so much the better.

That said, even if this did become law, given how eager the courts have been (throughout modern history) to make it close to impossible to sue government employees for any violation of rights, I do wonder how much good it would do.

Filed Under: 1st amendment, discovery, free speech, jawbone act, jawboning, ron wyden, ted cruz