Sen. Cruz Prepares “Jawboning Bill,” Eugene Volokh Raises Key Distinctions About Anti-Censorship Principles

“The First Amendment is the bedrock of the country, and we have an obligation to defend it.” 

​- Sen. Ted Cruz

Senator Ted Cruz. IMAGE CREDIT: Gage Skidmore

​Rumors have swirled on Capitol Hill that Sen. Ted Cruz (R-TX) is drafting legislation to let Americans – whether skeptics of the COVID-19 origin story or late-night talk show hosts – sue the government for monetary damages when they are censored.

Sen. Cruz has now confirmed that he is indeed crafting such a bill, one that would create new legal remedies for those silenced by government pressure. His bill would also restrict “jawboning” – the process by which officials pressure social media companies or news outlets to suppress disfavored views. The Senate Commerce, Science & Transportation Committee, which Cruz chairs, held a hearing Wednesday that explored government censorship and how to stop it.

• The first witness was famed legal scholar and Protect The 1st Senior Legal Advisor Eugene Volokh, who presented testimony explaining that “jawboning” can be defined benignly as an act of persuasion. It can also be:

“Government officials trying to coerce through the explicit or implicit threat of retaliation stemming from their position of authority, e.g., through the threat of enforcement or regulation. As a practical matter, the two meanings are closely intertwined, especially since it may be hard to tell whether there is an implicit ‘or else’ behind a request.”

Volokh raised the subtle issue of precisely defining what constitutes government coercion. Sen. Cruz emphasized the “or else” threats implicit in jawboning campaigns by powerful government agencies. On the other hand, Volokh asserted, no law should restrict the ability of government officials to communicate with journalists. For example, a White House press secretary should be allowed to tell journalists that they got a story wrong.

But Volokh made it clear – citing a strong line of legal precedent – that “a government official cannot do indirectly what she is barred from doing directly.” Quoting from the U.S. Supreme Court’s unanimous opinion in NRA v. Vullo, he said “a government official cannot coerce a private party to punish or suppress disfavored speech on her behalf.”

• Sean Davis, executive director of The Federalist, gave a vivid account of what it feels like to be on the receiving end of speech coercion. Davis described the State Department’s Global Engagement Center (GEC) and how it targeted domestic news outlets:

“Despite the fact that GEC was explicitly prohibited by both the U.S. Constitution via the First Amendment and by the very statute which created and authorized the agency from targeting domestic speech, it nonetheless sought to drive us out of business by funding, developing, and distributing technologies and tools to reduce our reach, by bullying advertisers into blacklisting us and many other conservative outlets, and by coercing Big Tech companies like Facebook, Twitter, and Google to throttle access to our content. In essence, our own government secretly and without any due process charged us with thought crimes, convicted us, and sentenced The Federalist to death.”

• Alex Berenson, journalist and author – whose reporting on COVID-19 was censored by Twitter – testified that social media companies did not want to censor users, but acted out of fear of the government. (The same dynamic is visible today when the Chairman of the Federal Communications Commission publicly hints at regulatory action against broadcasters who air views he dislikes.)

About his ordeal, Berenson reflected on the dilemma of social media companies: 

“They viewed having to sacrifice speech from some users as the price they had to pay to stay in the administration’s good graces. Every company faces this calculus, whether a Democrat or Republican is in the White House.”

No American should have to calculate that one’s protected speech might trigger censorship or a regulatory crackdown.

Eugene Volokh added a grace note with a personal reflection that underscored the stakes. Fifty years ago to this day, he said, his parents brought him out of the Soviet Union.
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Volokh concluded simply, that he wanted to “thank the United States of America for letting me in.”

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