“Are you guys fucking serious? I want an answer on what happened here and I want it today.” This message was sent by Rob Flaherty, who at the time was Deputy Assistant to President Joe Biden, to an employee of Facebook after his “request” to remove a post criticizing the Administration’s COVID policies was ignored. Flaherty was not the only Biden official to pressure Facebook and other social media companies to remove posts challenging the official position on COVID and other matters. For example, Surgeon General Vivek Murthy suggested dealing with COVID-19 misinformation via “appropriate legal and regulatory” measures.
These Biden officials were engaging in jawboning. Jawboning is when government officials pressure private companies to violate the First Amendment rights of their customers and/or employees. Even though the Supreme Court has ruled that government officials who engage in jawboning are violating the Constitution, jawboning remains popular with politicians and bureaucrats of both major parities. The best-known recent example of a chronic jawboner is Federal Communications Commission (FCC) Chair Brendan Carr. Carr has threatened to revoke broadcast licenses of television networks for unfavorable coverage of the Iran war, and for allowing late night hosts to make (unfunny and tasteless) jokes about conservatives and the First Lady.
One reason jawboning is popular with censorious politicians and bureaucrats is that it is difficult for Americans subjected to jawboning to win a lawsuit and obtain compensation for the violation of their rights. There are three reasons this is the case. First, a case brought against a federal official for jawboning will be dismissed when that official leaves federal-employment. Second, it can be difficult to obtain evidence that private businesses acted because of pressure from the government. Remember, the only reason we learned about “The Twitter Files” is because Elon Musk bought the company for the express purpose of protecting free speech. Even if the victims of jawboning overcome these hurdles, they may still find it hard to obtain compensation other than a judicial order that the government cease its unconstitutional actions, which in the majority of cases will be moot by the time a case is brought to trial.
In order to ensure federal employees who violate the rights of American citizens via jawboning can be held accountable, Texas Republican Senator Ted Cruz and Oregon Democratic Senator Ron Wyden have introduced the Justice Against Weaponized Bureaucratic Overreach to Networked Expression (JAWBONE) Act.
The JAWBONE Act explicitly forbids government agencies from attempting to coerce broadcasters or interactive computer services like Facebook and X to violate their employees’ or users’s First Amendment rights. The bill makes exceptions for lawful investigations, warrants, and the official use of government accounts or services. The bill also provides that anyone targeted by jawboning can sue the federal official responsible, even if the attempted censorship failed. Government employees who engage in jawboning will have to prove that their actions fall within one of these limited exceptions. Successful plaintiffs may receive financial compensation for the harm they suffered because a broadcaster or social media network was jawboned into violating their rights.
The bill also requires the National Institute of Standards and Technology (NIST) to create standards and a uniform process for each federal agency to record communications between a federal employee and an employee of a broadcast or technology company regarding any content broadcasted or posted by the company The records of these communications will then be stored in a portal managed by the Office of Science and Technology Policy (OSTP). The OSTP will then make the contacts available in a website along with summaries. The site must flag any requests from the government regarding content. Information protected for public disclosure by the Freedom of Information Act, such as classified information, trade secrets, and medical records may be redacted. However, the Chair and Ranking Member of the House Energy and Commerce Committee and the Senate Commerce, Science, and Transportation Committee will receive un-redacted copies.
The JAWBONE Act will restore First Amendment protections to Americans victimized by censorship done by private businesses acting at the request of government officials. It thus closes what many wanna-be censors see as a loophole in the First Amendment. Congress should send this bill to President Trump before the August recess.
