Ted Cruz and Ron Wyden try to fight censorship with bipartisan JAWBONE Act - Ars Technica

Overview

Ted Cruz and Ron Wyden try to fight censorship with bipartisan JAWBONE Act

Cruz/Wyden bill would help Americans sue federal officials over censorship.

Details

US Senators Ted Cruz (R-Texas) and Ron Wyden (D-Ore.) today introduced the JAWBONE Act, a proposed law that could fuel lawsuits against federal officials who try to coerce broadcasters or tech platforms into restricting speech.

The Justice Against Weaponized Bureaucratic Overreach to Networked Expression Act would prohibit federal agencies and employees from coercing or trying to coerce broadcasters and providers of online services or AI services into changing content. The bill could apply to Federal Communications Commission Chairman Brendan Carr’s repeated attempts to pressure TV networks and broadcasters, or government pressure imposed on social media firms and AI chatbot makers.

The bill would create a private right of action for victims of “jawboning,” letting people recover compensatory damages in court. Individuals whose speech is stifled could bring cases against government officials, and the proposed law could be enforced by state attorneys general through civil actions.

“Jawboning occurs when the government pressures private companies to censor speech protected by the First Amendment,” said a press release issued by Cruz and Wyden today. The JAWBONE Act is “legislation to hold the government accountable for censorship and violations of the First Amendment,” it said.

The bill is bipartisan, and the Republican Cruz previously criticized the Republican Carr for coercing ABC into suspending Jimmy Kimmel. A quote from Cruz in today’s press release focuses only on actions taken by the Biden administration, though.

“The Biden administration weaponized the Cybersecurity and Infrastructure Security Agency to pressure Big Tech into ‘canceling’ Americans who spoke out against vaccine mandates and election fraud. Holding the government accountable and giving Americans the tools to fight back is essential,” Cruz said.

The joint press release has a quote from Wyden criticizing Trump for trying to censor late-night TV. “The most blatant example is Trump threatening cable companies because he doesn’t like their late-night shows, but jawboning isn’t partisan, and it isn’t new,” Wyden said.

Wyden said that “nearly all of Americans’ speech—including TV news, online streams and social media—flows through private corporations that are highly susceptible to government pressure.” A spokesperson for Wyden told Ars that the bill would apply to other scenarios not mentioned in the bipartisan press release, like the Trump administration pressuring app stores to take down apps such as ICEBlock.

A bill summary said that under current legal precedent, plaintiffs must prove that coercion succeeded in causing removal of or changes to content. The bill would let plaintiffs sue and obtain financial damages from “any government agency or employee that jawbones companies involved in social media, AI, or broadcasting, regardless of whether the jawboning succeeds.”

The bill specifically authorizes financial damages, because under current law, plaintiffs can only obtain injunctions that prevent future or ongoing violations, the summary said. With financial damages, government officials who engage in unlawful censorship could be held accountable even after leaving office. The bill effectively imposes a limit on financial payouts by allowing compensatory damages but not punitive damages.

The bill also “requires agencies to submit certain communications with social media companies, AI companies, and broadcasters to a portal with detailed public summaries and full access for Congress, helping ensure jawboning does not occur in secret,” the summary said.

The proposed portal would help individuals prove their rights were violated, the summary said. Without this measure, “plaintiffs may struggle to prove jawboning because the government has secretly communicated with the private companies it is coercing. Americans may not even know they were censored by their government,” the summary said.

The bill text said broadcasters, online services, and “speech-enabling artificial intelligence systems are critical for access to information and individual expression and have a right to independent editorial judgement. Such entities can also serve as chokepoints convenient for the government to target for censorship of disfavored speech and information.”

The bill defines broadcasters to include stations with FCC licenses and the national TV networks that provide programming to affiliate stations. This means coercion of local stations and national networks would violate the law.

“The term ‘coerce’ means to take a harmful, hostile, or unfavorable action, to imply the possibility of taking such action, or to threaten such action,” the bill said. The proposed ban has exceptions for lawful investigations, enforcement of federal or state laws, and actions taken under a warrant.

The bill has a range of supporters, from the American Civil Liberties Union to Grover Norquist’s Americans for Tax Reform. ACLU Senior Policy Counsel Jenna Leventoff said the government has repeatedly “abused its authority to coerce private actors into censoring themselves,” and that the bill “would protect the First Amendment by stopping this kind of unconstitutional jawboning against broadcasters, platforms, and AI providers.”

Norquist said that “Twitter and Facebook were pressured by the FBI during the Biden administration to delete posts from the opposition,” and that the bill “will create a real recourse for victims of this indirect censorship and not let bad actors escape just by changing jobs.”

Another supporter, the Foundation for Individual Rights and Expression (FIRE), said:

If the JAWBONE Act becomes law, Americans will be able to sue federal officials for violating the First Amendment when they coerce social media companies, AI platforms, or broadcasters to change or take down protected speech. If the federal official did the jawboning “willfully and wantonly,” they’ll have to personally pay the damages. (Otherwise, the government will pay on their behalf.) That means federal employees will be personally incentivized to make sure they’re staying on the right side of the First Amendment when they reach out about speech on social media, AI platforms, TV, or radio.

The Knight First Amendment Institute at Columbia University endorsed the bill as “an important mechanism for accountability when government officials unlawfully coerce private intermediaries to suppress protected speech.” Government officials are free to speak directly to the public, but they must not “use threats or regulatory power to coerce private intermediaries into suppressing protected speech,” the group said.

Public Knowledge said the bill could rein in Carr’s campaign against broadcasters and Trump administration attempts to censor social media.

“From FCC Chairman Carr using the threat of the agency’s regulatory authority to coerce broadcasters over programming he (and the president) dislikes, to officials punishing social media platforms over their content moderation policies, government actors time and again weaponize their power to pressure platforms, AI providers, and broadcasters to suppress speech they themselves disfavor,” the group said.

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Key Takeaways

Ted Cruz and Ron Wyden try to fight censorship with bipartisan JAWBONE Act
Cruz/Wyden bill would help Americans sue federal officials over censorship
US Senators Ted Cruz (R-Texas) and Ron Wyden (D-Ore
The Justice Against Weaponized Bureaucratic Overreach to Networked Expression Act would prohibit federal agencies and employees from coercing or trying to coerce broadcasters and providers of online services or AI services into changing content
The bill would create a private right of action for victims of “jawboning,” letting people recover compensatory damages in court