Although the Bill of Rights technically contains the first 10 amendments to the Constitution, they can be rightly considered part of the original document. Many states that voted to ratify the Constitution only did so on the express condition that the first Congress immediately adopt the reservation of rights to the people which government lacked the power to infringe.
But what if the government found an end run around these rights—a loophole, if you will, whereby the free speech guaranteed to us in the First Amendment could be infringed with impunity? Where would we be? Today's show will examine that issue.
My guest Will Duffield is a policy analyst at the Cato Institute’s Center for Representative Government, whose work has appeared in the Cato Journal, the Legatum Institute and the Adam Smith Institute.
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TRANSCRIPT
Jawboning 101
Bob Zadek: Will, you have written about the issue of “jawboning. Explain this buzzword for the government's end run around the Bill of Rights?
Will Duffield: It's a strange word in a way, but it means government bullying or informal pressure—coercion—usually aimed at a middleman, intended to push them to silence or otherwise interfere with some third party that the government can't get at on its own. So, it's a way for the government to exceed its lawful or constitutionally enumerated powers by leaning on private actors to do what the government can't.
Bob Zadek: So, jawboning, in effect, gets a private citizen or a company to do for the government what the government cannot do directly, because it's prohibited.
This issue popped up for the first time on my show when the government threw its power over banks. The government had great power over banks. Why? Because banks are regulated, and banks need permission to do lots of things. For example, acquiring another branch or acquiring another bank. So, banks cannot really increase their profits without permission.
Well, permission comes with conditions. Governments, used their power over banks, and took the position against gun stores, for example, or porn websites, or things of that nature were in disfavor The activities were lawful, so government could not attack gun shops directly. So, what did they do? They let the banks know informally, wink-and-nod, that, “Well, banks, sooner or later you're going to come to us for permission to do something. We are more likely to give you permission to acquire a branch. We are more likely to do so if you start to deny checking accounts to gun shops.”
The banks, in recognition of the enormous power government has, simply started to reject gun shops for deposit accounts. Without a deposit account, an enterprise cannot transact business. So, government was able to attack gun shops through the influence on banking in a way they never could do, because gun shops were a lawful activity. Now, that was seven, six years ago, something like that.
Will Duffield: And this problem goes back even further, but that example shows that it's not always about speech. I'll be speaking about jawboning in a free speech context. But going all the way back to the 1960s and early 1970s, there were a lot of attempts by the executive branch to control prices. We were in a time, perhaps like the time we're in now, of record inflation. And in order to hold and keep office, Presidents were trying to tamp down on prices. One of the ways they tried to do this was just by bullying producers, threatening them with, in some cases, fewer government contracts or stiffer regulation if they increased prices.
This activity—using their speech to bully—was then, in a perhaps more religious society, likened to Samson's vengeance against the Philistines in the book of Judges, where with the jaw of an ass, he slays a thousand men. Presidents Kennedy and Carter's speech here was deemed the product of the jaw of an ass. Nevertheless, it could slay the nation's bankers and businessmen and keep them in line. So, that's really where the phrase comes from. But since then, the activity that it can be used to describe has moved from this financial space to things like Operation Choke Point and that kind of control through banks and financial intermediaries, as you point to, because banks are so strictly regulated already.
The government has a lot of potential levers they can use to punish a bank that isn't willing to act on the state's behalf. And so, the more interaction a given industry has with the government, be it through regulation or government contracts, the more vulnerable firms within it are to get jawboned.
Mafia Tactics & Forced “Decisions”
Bob Zadek: You now are sought after. You have to block calls, because so many people want to hear what you have to say. And all of that is the result of Elon Musk's adventure in purchasing all of the stock of Twitter. Now, he owns Twitter the way I own my laptop and I can do what I want with it.
So, here we have Elon Musk in an economic activity, buys all of the outstanding stock of Twitter. That set in motion the Twitter files. Tell us how Elon Musk got you to be a media darling talking about jawboning.
Will Duffield: So, there are two important streams of information about jawboning recently. The one, as you identify, has been the Twitter files, thanks to Elon Musk. These are a collection of documents released by a number of different journalists from Twitter over the past three, four years. They recount decisions that Twitter has made and engagements that it has had with the federal government.
Bob Zadek: Can I correct you? I'm sorry, I don't usually do this.
Will Duffield: Please do.
Bob Zadek: You said "decisions" that Twitter has made. I'm going to put air quotes around that. But you're going to explain why you accept the correction as you continue your narrative.
Will Duffield: Yes, because many of these decisions, we might say are not entirely Twitter's. There is another hand involved in making them, or pressure behind the scenes that we weren't aware of before.
We'd known and a lot of what I wrote about in this paper that came out this fall concerned congressional jawboning: members of Congress in public, browbeating platforms to moderate more or remove foreign influence. But it was only through these Twitter files that we got the private side of that story or the aftereffect, where after being browbeaten by Congress, they were jawboned by them. Then platforms turned to the FBI, and then an alphabet soup of intelligence community agencies, state department operations, etc., to forward on requests, all in the background while Congress is threatening to regulate them, if they don't do more.
So, these Twitter files, and importantly, a series of lawsuits by the states of Missouri and Louisiana aimed at the CDC and the Biden administration, which have revealed a lot of their communications with Facebook, which look fairly similar to what we're seeing in the Twitter files, this wasn't just aimed at one platform, but at many.
However, the government, and in particular, the intelligence community after 2016 in the wake of these concerns about Russian influence, just slowly overwhelmed these platforms with requests, demands— all backed by this specter of the potential for regulation or other regulatory harm if platforms didn't comply and change their tunes. So, when overwhelmed, especially facing just multitudes of suggested foreign accounts and that sort of thing, platforms really failed to do their due diligence, didn't have the time or resources to, and defaulted into a place of accepting these government demands and removing speech in response to them.
Bob Zadek: So, in other words, when you said, "Twitter made a decision," Yes, they did make a decision, but it was the kind of decision explained by a dark alley, a gun at your head, “Your money or your life.” Well, yes, you're given a choice, but not quite.
Will Duffield: Yes. Jawboning is often compared to the kind of mafioso suggestion that, "You have an awfully nice business there. It would be a terrible shame if something were to happen to it."
The Power to Regulate is the Power to Destroy
Bob Zadek: There is a phrase in economics, "The power to tax is the power to destroy." For the purpose of this conversation, I'll modify that: "The power to regulate is the power to destroy." The power holder is in both cases, the government. It's just a different weapon, the creation of the power. Twitter knows full well that their life could be hell if the power of government is aimed towards them. They could be taken apart; they could be attacked on antitrust grounds.
We'll get to Section 230 in a second, another area, where the social media was feeling vulnerable, just as banks are vulnerable when we talk about the banks being persuaded to use their power. So, Twitter feeling vulnerable, now succumbs to the power of government, and government hides behind Twitter to carry out Twitter's policies. Any regulated industry is vulnerable as in it has little choice but to follow the instructions of government and to take the heat for what is really governmental action.
Will Duffield: Yes, and before these Twitter files became public, and before we knew about the level of engagement the CDC had with Facebook, we took these decisions to be solely private, and platforms suffered reputational harms as a result. We thought of them as biased or out to get us in some ways at times, until we had these tranches of emails and the like. We weren't able to see government's hand behind the scenes.
So, all of the costs to these government decisions about what speech should be allowed or what's safe in the name of public health, all accrue the costs of them, all accrued to these private companies trying to make it in a fierce market.
How Congress Gets Around the Constitution
Bob Zadek: Since we are talking about free speech for this hour and we are talking about the First Amendment, let's bear in mind that the Supreme Court has been more aggressive than ever in recent memory in protecting First Amendment rights. And therefore, the government has found itself more restricted than ever before by the inconvenience of the Constitution.
Will Duffield: So, there's a real path dependency here, because those formal protections are so strong, both compared to in the past but also compared to other countries.
A law professor named Eugene Volokh talks about the deluge of “cheap speech” that the internet has brought—everyone being able to publish about things almost costlessly that previously wouldn't have warranted the price of postage or the paper it was written on. In Germany, in Turkey, they've passed new laws restricting what people can say online. This is bad. But in the United States, thankfully, because of the First Amendment, politicians or powerful figures upset by what others have said about them can't do that. Unfortunately, instead, they do have this capacity to jawbone, because they have so much power elsewhere.
Bob Zadek: So, once again, Will, remind us that jawboning is the improper exercise of power. The government is able to perform improper acts indirectly, because it is given the power to do so. Whenever we complain about government being too controlling, exceeding what we believe to be its authority, it's always traced back to them being forbidden from doing something directly, and then finding an end run around it.
Take the speed limit. Government can't control the speed limit, but the government says, "You could be driving on dirt roads unless you get the money from us to put pavement. And if you want to put pavement down, 55 miles an hour is a limit." So, government doesn't have the power under the Constitution to regulate speed limits. They, however, using coercive powers, forces their will by doing an end run and that's what Jawboning is. It's a different power than using money, but the result is the same. The government gets somebody to do something which is expressly forbidden in the Constitution. It does so indirectly by using surrogates.
Will Duffield: The demand is oblique to the threat. So, when the threat and the demand are essentially one and the same, it's not jawboning. You say, "See proposed changes to Section 230." Some politician doesn't like a certain form of speech. He says, "I'll expose you to liability, so you'll have to take down that speech or you'll be sued."
Well, we might not like that attitude, but it's not jawboning there, because the proposed legislative change will do exactly what he's asking the platform to do anyway. However, if he goes and says, "I'll change antitrust law, you'll have to be broken up." Well, that looks a lot more like jawboning, because even if you were broken up, you wouldn't have to take down the speech in question. That has nothing to do with antitrust. Antitrust is just being used as the cudgel or the threat to get the private actor to do what they couldn't be ordered to do directly.
The 26 words that created the Internet: a primer on Section 230
Bob Zadek: I have done shows in the past about Section 230 and this is the perfect show to do a reminder or a primer on 230. Section 230 is often been referred to as “the 26 words that created the internet.” Section 230 is called the Communications Decency Act of in 1996. It effectively creates an environment where free speech is virtually assured in social media. There would not be social media today without Section 230. Section 230 was enacted in order to give anybody's opinion an outlet. Nothing could be healthier for society than that.
Tell us how this statute, which was forward thinking and enlightened when drafted, now enters into a conversation on censorship.
Will Duffield: Well, I think this problem of jawboning illustrates how important Section 230 still is in many ways.
Section 230 is an intermediary liability protection that prevents platforms, or really any website that hosts user speech, from being treated or held liable as the publisher of that user speech. It ensures that responsibility for what anyone says online rests with the speaker and not whoever is carrying or providing a platform for their speech.
Without it, platforms would have to do a lot more policing of what their users say, because they could be sued over something they didn't catch or remove that libels someone or is otherwise illegal or litigable. So, in a world without Section 230, where platforms are liable for what their users say, then jawboning would be even more threatening and dangerous, because you'd always run the risk if you didn't obey the government takedown request, that that would even come up in court later.
“See, the government warned you that this content was dangerous and yet, you still failed to remove it! Well, it doesn't look good for you, Mr. Platform.”
When we think about the exercise of informal power, there are a lot of other levers government can pull to get at platforms, but the threat of a lawsuit from a friendly NGO isn't one of them. When we see how some non-governmental organizations—civil society groups—have essentially provided targeting information for government to use in its jawboning efforts, something like the “twelve superspreaders of misinformation” identified by British NGO this summer and then taken up by the Biden administration as the worst of the worst in COVID disinformation. Never mind that one of them was RFK Jr., we ought to be thankful for the protections that these platforms do have to say, “No government, go pound sand, you can't threaten us with that.”
Bob Zadek: Without Section 230, it is claimed plausibly that social media simply could not exist in its present form. And therefore, as an economic activity, it would fail, it would fall apart. So, the internet is as dependent on Section 230 as we are dependent upon oxygen.
So, now you have government, whether it's the legislative branch or the executive branch contacting social media quite directly and saying, "We created the oxygen that you live off and we can just as easily amend or repeal Section 230, if you make us unhappy." That's the truth, especially when you have non-divided government—when you have one party controlling. Now that threat gets taken seriously.
“The internet is as dependent on Section 230 as we are dependent upon oxygen.”
Again, that power over of life and death. Of course, when legislators like Senator Crowley or Marco Rubio say, "Hi, I'm a Senator and I have a thought I'd like to share with you," that call doesn't get blocked. That call gets listened to, because the threat is real just like with banking, as we said earlier. So, therefore, government says, "We would prefer that you …” the word censor is never used, but “that you make it far more difficult for your customers to find content that we disapprove of."
I don't think you'll ever find the word censorship in the Twitter files, but you'll find the same effect.
Will Duffield: There are a lot of styles of interference here. Some of my report focuses on just identifying and typifying these different approaches that government actors or congressmen will take. Sometimes, they'll say they're just asking questions, but they'll demand a response:
“What action have you taken about this problematic speaker? Why haven't you taken that action?”
We think about that in a speech context. Can you imagine a newsroom being hauled into Congress and asked why it did or didn't run a particular op-ed? That would be absurd. But social media platforms have, at least, perceived the rules to be a little different.
I think, when we're talking about speech removal, which is the majority of jawboning cases by far, we can forget that platforms do have a right to refrain from hosting speech as well.
There are things and speakers that they might not want and sometimes jawboning can take the form of must carry demands saying, "We'll punish you, if you don't continue to host this speech or speaker."
That can make it hard for any forum operator to maintain the kind of conversation that they'd like.
And finally, one of the most, I think pernicious forms of jawboning are just outright allegations of illegality, even when the underlying speech would certainly be protected by any court in the land. Steve Bannon made some hyperbolic statements about Anthony Fauci the other year saying that, "If I were a Tudor-style king, then I would put his head on a pike."
Senator Richard Blumenthal claimed that this was a death threat and that Bannon should be banned from YouTube for threatening the life of Dr. Fauci in this illegal way. Now, clearly, that speech is hyperbolic. It's protected as opinion. No one anticipates Steve Bannon actually going out and trying to lop Fauci's head off. That would be ridiculous. But nevertheless, in an attempt to jawbone or bully YouTube into silencing and censoring him, Blumenthal claimed that this speech was unlawful even when it wasn't. So, there are many ways to skin a cat and there are many ways for government to cast speech as worthy of removal or present it as the least painful option for a social media platform.
The Parallels to Government Licensing
Bob Zadek: I did a show that discussed, in part, the history of radio. And we spent a lot of time on the show when newspapers were the first mass media and there was no television. That was it about 1920s, 1930s. And the government, by statute, regulated who was given the right to use the airways to broadcast. You had to get a license. 'License' is one of the most hateful words in the language—permission from government to do an otherwise lawful act. That's what license is. Take something that is totally lawful, it doesn't hurt anybody, and yet, you need governmental permission.
The reason I mentioned it in this context is that there was a requirement for decades that in order to keep your broadcast license, your programming had to be "in the public interest and balanced," which means the government decides if you're broadcasting the right stuff. So, the history of the government using its power in this case to license, once again, life and death power to censor and regulate speech on the airways, which it otherwise could not do. Governments forever have learned how to do this. So, this is not something new to Twitter or to Facebook. It has a very powerful and full historical content.
Will Duffield: It's important to recognize or juxtapose with contemporary jawboning to see why contemporary online jawboning is so hard to combat or even address through the courts. There is a case in the 1980s, Carlin Communications v. Mountain States, about a phone sex hotline that was disconnected by the phone company after the company was threatened by the local district attorney. It sounds like silly 1980s smalltown politics, I guess, but had a real impact on this phone sex hotline operator. So, they sued and the district attorney's actions were found to be illegal.
The only remedy the court could offer was reconnecting the phone sex hotline, which in some ways tread on the rights of the phone line operator to host or refrain from hosting whatever content it wanted—and not take that on as a customer. But the court had to leave it open for the phone operator to disconnect the hotline in the future if they didn't want to carry that kind of content. And so, even there, in this kind of binary case where the hotline is either there, you can call the number or not, it's very easy to identify. It was hard to offer a lasting or permanent remedy without stepping on the rights of the intermediary.
When we take that to the online platform space, where you're not just talking about binary connection versus disconnection, but there are a whole host of steps platforms can take in the middle, algorithmically amplifying or refraining from amplifying, showing your content in search or hiding it in search, it can be one really hard to identify when jawboning has actually happened or affected a given platform decision. That's why things like the Twitter files or this Missouri Louisiana lawsuit are so important. But it's also even harder to offer some fixed permanent remedy. You can't guarantee someone a certain amount of traffic going forward forever on YouTube after it's been found that the government bullied YouTube to suppress their videos in the first place.
Disarming the Jawboning Culprits
Bob Zadek: Now, what makes this subject of jawboning so pernicious and why I asked Will to share his wisdom with us on the show is that it is clearly government overreach, but there's no smoking gun. Government will say with feigned innocence, "We have simply expressed our opinion. We have the right to express our opinion," and it's like trying to prove theft of service—legislative bribery. How do you show the exact quid pro quo? The government was saying, "We have an opinion too and we are sharing with Twitter our opinion."
So, what makes this so scary is that it's very difficult to have the courts or even the legislature draft and to put into either an opinion or a statute exactly what you want the government to stop doing. That's the scary part. The government has found a very powerful tool.
Having presented the problem in your piece, you didn't say, "And I have drafted legislation. I've done the heavy lifting. Here, enact this and I'll write about something else." I didn't see you doing that in your piece. So, do you have a cure? You have sounded the clarion call, "Hey, America, this is what's going on."
And then, you got everybody riled up. So, Will, any suggestions?
Will Duffield: There are a few. Nothing's foolproof. Again, this is a difficult issue to tackle directly through the courts, even though there is a clear First Amendment issue, because most of the punishment there would accrue to the private intermediary and then they're being punished for having been bullied, which is never a great scenario. When it comes to jawboning by members of Congress, it's very hard to prevent because of a part of the Constitution called the Speech and Debate Clause, which is intended to allow Congress to freely debate any subject. But it prevents Congress members from being held liable for their speech, even if that speech constitutes jawboning.
So, the best solutions are either a congressional rule, because Congress is a club and it can make rules for its members. In the same way as it limits nepotism or speaking out of turn, it could limit certain forms of jawboning. Beyond that, the solution is like it always is, I suppose: to vote them out if a member of Congress has jawboned egregiously.
So, those are both, again, not terribly fulfilling solutions.
Outside of the congressional space, with this executive branch jawboning that has been revealed through the Twitter files and these lawsuits, there is more that can be done, because federal employees are not protected the way members of Congress are. So, they can be prohibited from demanding the removal of speech.
Now, this does become constitutionally tricky in some ways, because they have speech rights of their own. In some cases, their conversations with platforms concern speech that is actually unlawful criminals communicating with one another, foreign influence operations, ISIS, that sort of thing. So, it can be hard to wall off that kind of often national security related communication from domestic jawboning.
But the other and perhaps, most fruitful route is merely reporting requirements. If government employees or officials are required to report and identify every time they've communicated in private with these platforms, both knowing that you're going on the record in a way with your request may discourage some of these demands and it would make it much easier for individuals to sue in cases where jawboning leads to the removal of their speech, because they can more easily identify the actual government official responsible and the identification of their speech that led to its removal. So, sunlight there on the administrative jawboning or agency jawboning side may ultimately be the most useful disinfectant. When it comes to Congress, it's a tougher nut to crack.
Bob Zadek: Jawboning takes so many forms. I have done many shows on Title IX abuse. And Title IX abuse on college campuses defended by organizations such as the FIRE. That all started with the Dear Colleague Letter and that was jawboning.
That was the Department of Education deciding without legislation what it perceived to be a rape culture and college campuses that women were exposed to very bad behavior, and they feared that universities and colleges were sweeping it under the rug were using due process as a way to deny women their "day in court." But they had no power. There was no legislation which they can enact. And this was during the Obama administration. So, the Department of Education wrote a letter.
Well, you don't go to prison for writing a letter. The letter was addressed, “Dear colleague,” and it was sent by the Department of Education to college presidents and provosts. And it said, "Just to let you know, we think, in general, colleges should do a much better job in protecting the rights of women. We are concerned women are being treated unfairly in violation of Title IX. Sincerely yours, Department of Education."
And one more fact, the Department of Education exists primarily to disperse money to the states or to the colleges. That's why they're there. They're a big disbursement office. They have the money. So, when a university gets a letter, "Dear colleague, here's what we think you should be doing,” that's “your money or your life.”
That is another example of jawboning of the government expressing its behavioral preference in a benign letter that has the weight of life and death to the recipient.
Will Duffield: This is why the power of the purse is in a sense supposed to be reserved to Congress, because the power to disperse money is a tremendous power to have. You've seen some of the jawboning cases in the past involved government contracts and the ability to disperse money in the defense space. That was how steel companies were jawboned—the threat, not just of the cessation of government contracts, but the idea that those contracts, which you'd previously gotten would now be awarded to your competitor, advantaging them at your expense if you didn't play ball.
Bob Zadek: Now, the jawboning became overwhelmingly apparent as a byproduct of the pandemic. We all saw jawboning on steroids. Putting aside the Twitter files, which were later, Jawboning was happening, “below the radar.” Tell us anecdotally how the pandemic brought out the worst in jawboning.
Will Duffield: I actually see the worst or this current vogue of jawboning as starting even earlier—in the wake of the 2016 election around concerns about Russian influence or interference. Basically, Russian speech that Americans were receiving. And then, Senator Dianne Feinstein said to these platforms, "You've created your services. This is your problem. And if you don't do something about it, we will."
That, to me, opened up this new age of jawboning. Certainly, during COVID, it almost intensified again. There was a new emergency, and President Biden claimed that platforms were killing people by failing to remove COVID disinformation. So, the hyperbolic rhetoric really came out. I think platforms were in a difficult position, because beyond the CDC or WHO, what authority do you turn to for answers or definitions in this time of crisis? But every emergency begets new powers. And in order to protect public health, platforms became much more willing to moderate. So, it opened the door to a new level of jawboning, I think.
Bob Zadek: As I come to the worst five minutes of my week, when I have to wind down a conversation with a guest, will we be talking about jawboning more or less in upcoming years? Is it just the best we can do— to give the public the tools to recognize it when it happens and hope they use the ballot box widely?
Will Duffield: I think it's a really good start. Previously, there wasn't the same public appreciation of this problem or public vocabulary with which to discuss it. And now, thanks to the attention given to these problems recently, the concerns raised through coverage of the Twitter files and the like, then people can look at communications, either publicly by congressman or others that have come to light and say, "That's jawboning. I know it when I see it. This is wrong. You shouldn't be bullying and communicating with private actors in this way." So, I think that's an important rhetorical tool for every American citizen to have as they engage with their elected officials.
Bob Zadek: This should be preceded by a public service announcement, this show. We've been speaking with Will Duffield, who can be followed on Twitter. Perhaps, Will could- [crosstalk]
Will Duffield: @Will_Duffield. And my paper is called Jawboning Against Speech: How Government Bullying Shapes the Rules of Social Media.
The New Face of Government Censorship