Government by Raised Eyebrow: The JAWBONE Act and the Problem of Censorship by Proxy
The easiest way for the government to censor speech is not always to ban it. Sometimes, it is to find someone else with a hand on the switch.
That is the problem at the center of the current debate over free speech in the digital age. For years, the public argument focused on whether private technology companies were moderating too much content. A different concern has now moved to the forefront: “jawboning,” the practice of government officials using informal pressure, implicit threats, or regulatory leverage to induce private intermediaries to suppress speech on the government’s behalf.
Late last week, Sens. Ted Cruz (R-Texas) and Ron Wyden (D-Ore.) introduced the Justice Against Weaponized Bureaucratic Overreach to Networked Expression Act, or JAWBONE Act. The bipartisan legislation seeks to bring jawboning into the open and provide Americans with a legal mechanism to challenge government efforts to coerce private actors into censoring lawful speech.
The proposal has much to recommend it. At the same time, it should be viewed as only a first step toward curbing the federal government’s ability to conduct coercive speech-suppression campaigns. To be fully effective, it should be paired with structural reforms that limit government officials’ discretion to pressure online platforms over speech decisions.