February 14, 2023
Every day, millions post on social media platforms (status updates, tweets, photographs, videos) under the assumption that First Amendment protections on freedom of speech apply in the digital realm in the same way they apply to in-person speech. Unfortunately, recent coercive interactions between the federal government and social media platforms, commonly known as “jawboning,” have denied millions of people their First Amendment rights and put Washington bureaucrats in control of online speech.
In simple terms, jawboning occurs when “a government official threatens to use his or her power — be it the power to prosecute, regulate, or legislate — to compel someone to take actions that the state official cannot.” Such actions include pressuring platforms to remove posts that would otherwise remain accessible or asking platforms to remove specific user accounts, even though they have not committed any crime.
Such interactions should horrify those who hold reverence for the Constitution and the protections it provides.
Although social media platforms have lowered the cost of speech and provided opportunities for people to connect with others beyond their immediate circles, social media has also created opportunities for some to disseminate what the media and others have dubbed “disinformation” and “misinformation.” In response to this emerging threat, it was revealed that the Biden administration engaged in a protracted and covert campaign to coerce platforms to remove posts and suspend accounts that pushed a narrative that did not align with the federal government on COVID-19 and the story surrounding Hunter Biden’s laptop.
But the laptop story, like much of what the government and social media platforms have deemed “disinformation,” turned out to be true.
Although COVID “misinformation” may be unseemly and spreading claims surrounding a president’s son who faced significant personal problems may be distasteful, such speech is protected by the First Amendment — and for good reason. Much like any other form of speech, medical claims or unverified rumors must be subjected to scrutiny and, if warranted, ridiculed. But when the federal government jawbones social media platforms, this scrutiny cannot occur.
While both Republicans and Democrats have engaged in jawboning, the Democrats have been more overt in their desire to shape content online. For example, perennial presidential candidate Sen. Elizabeth Warren (D-MA) has consistently warned platforms that they are not doing enough to combat “misinformation and disinformation.” Sen. Dianne Feinstein (D-CA) has been more overt in her warnings, suggesting that Congress could take action to address disinformation and misinformation if the platforms don’t act of their own volition.
The desire of Democratic lawmakers to control digital speech was most clearly displayed in the misguided attempt to establish a Disinformation Governance Board within the Department of Homeland Security, a plan that was widely criticized on First Amendment grounds and compared to George Orwell’s Ministry of Truth.
The jawboning of social media platforms is particularly dangerous because it grants the federal government greater control of speech, even though the Supreme Court and the Constitution place clear limits on the power of the federal government to regulate speech. In many ways, jawboning is a clear violation of the public’s constitutional right to speech. Aside from granting the federal government greater control over digital speech, jawboning of social media platforms risks turning them into extensions of the state, allowing the government to control public discourse, shape political narratives, and force people into self-censorship under the threat of removal from platforms.
Given the significant threat posed by jawboning to the First Amendment, it’s important that Congress and state legislatures take steps to prohibit the practice. First, Congress would be wise to investigate the topic of jawboning to establish how ingrained the practice has become over the past several years. The recent creation of aHouse committee to investigate the weaponization of the federal government is an important first step. Second, lawmakers from both parties must support legislation to prohibit federal employees from using their positions to jawbone private companies. While Republicans have principally been the target of jawboning, at some point in the future, they will control both Congress and the White House and could easily employ similar tactics against Democrats.
Finally, state legislatures have a role to play. States should also pass legislation to prohibit their employees from jawboning private companies. While the issue is predominantly a federal one, there is always a risk that state employees will take advantage of their positions to censor speech online.
While federal authorities are right to be concerned about the spread of lies online, their response must respect the First Amendment rights of users online. The recent actions of the federal government, however, in pressuring social media to remove content and accounts have trampled on these rights and put Washington in control of online discourse. For a country that prides itself on diversity of opinion and individual liberty, such actions must be seen as an aberration.
Congress and the states should take action to correct these blatant violations of constitutional rights and preserve the important protections that the First Amendment provides. The nation simply won’t be the same if they don’t.