The term “censoring” is casually thrown around in the debates over online content moderation. For example, many invoke the term “censorship” when tech companies express their speech rights to remove or limit certain types of content (an issue in a separate set of court cases that are likely to go to the Supreme Court soon).
But this case raises a different question: How do we deal with actually censorious actions by governments, and what rises to such a level? The courts can and should play a certain role, but greater transparency is needed and is more likely to be an effective remedy.
The courts have previously addressed jawboning in their jurisprudence but have yet to establish a uniform standard for when jawboning violates the First Amendment. That being said, the standard that has emerged from the history of jawboning cases indicates that only the most grievous overreach is clearly unlawful. This means that litigation alone is unlikely to protect freedom of expression from government pressure adequately.
Another major challenge to using only the courts as a remedy for jawboning is that often, no one is aware that the government pressured a social media company to take down their speech. Missouri v. Biden is unique, as the courts granted discovery allowing the plaintiffs to discover a substantial amount of evidence that was not initially publicly available.
But discovery won’t always be available; sometimes, we just don’t know what we don’t know. For example, without the disclosure of government actions through the “ Twitter files, ” users might still be unaware of the government pressure that tech companies faced. Without consistent insights into government communications with private actors, the efficacy of judicial remedies is further limited.
Since the courts aren’t a sufficient solution alone, Congress could prohibit jawboning and impose penalties on government actors who break the prohibition. This approach sounds appealing; after all, why shouldn’t we further ensure the government isn’t violating the First Amendment?
But this presents a problem in practice. Any prohibition will have to define clearly what speech the government can and cannot use in its communications with private actors.
And getting this balance right is hard . Just look at Missouri v. Biden, where district and circuit courts applied two different sets of criteria of what government action is prohibited. The district court prohibited 10 different types of activity with eight carve‐outs while the circuit court enjoined one type of activity with no carve‐outs.
Similarly, lawmakers can craft broad prohibitions with limited exceptions for lawful speech, and this will significantly reduce jawboning. Doing so, however, may limit government efforts to report legitimately harmful things or provide important information to citizens. Consider law enforcement’s attempts to report child pornography or FEMA trying to communicate updated information during a natural disaster.
Given this challenge, perhaps the best next step is greater transparency by the government. Policymakers could require government employees to report any request of a private company to restrict or block their services based on First Amendment‐protected activities.
Thanks to the greater transparency, users targeted by government requests are then armed with information with which to sue government officials who crossed the line into coercion and unacceptable pressure against protected speech. Paired with penalties to punish government officials who fail to disclose their requests of social media, secretive jawboning can be pushed into the sunlight.
Regardless of the outcome of this case, the courts are only part of the solution. The public deserves to know when its speech is being targeted by its government. Policymakers owe the public transparency over government actions to protect freedom of expression online.
