Restoring Free Speech to the Airwaves and Internet
By James Erwin and Rohan Naval
Senator Ted Cruz, Chairman of the Senate Commerce Committee announced an October 8th hearing on the issue of “jawboning” and free speech. The Commerce Committee released a report on jawboning in conjunction with the hearing, and Sen. Cruz plans to introduce legislation to curtail the practice shortly.
Jawboning refers to the practice of government agencies and regulators using implied threats to pressure private actors into taking certain actions. While there is no actual use of government power, veiled threats can create a quasi-regulatory environment for companies which harms the free market and infringes individual liberty.
The hearing comes on the heels of Federal Communications Commission Chairman Brendan Carr’s comments about late night host Jimmy Kimmel’s misleading remarks about the murder of Charlie Kirk on the airwaves, and the subsequent bruhaha over the future of his show. Citing legacy FCC policies policing news distortion and statutory language treating the public airwaves broadcasters use as a “public good” that needs to be operated in the “public interest,” Carr implied affiliates that continued to air his show might be punished. Affiliates promptly dropped Kimmel’s show and ABC cancelled it, until public backlash led all parties to relent a week later.
Of course, these affiliates could well have made their own business decision to drop Kimmel’s show. But Carr’s comments, and the potential jawboning they represented, created the appearance of censorship that could never be shaken. Democrats like Vermont’s “independent” socialist Bernie Sanders were quick to apply political pressure in the opposite direction and got their way with Kimmel’s reinstatement.
Sen. Cruz was quick to defend Kimmel’s right to speak freely, calling the potential jawboning “unbelievably dangerous.” That his committee staff were already working on a jawboning report about the Biden administration’s social media censorship was a happy coincidence.
In a statement accompanying the report’s release, Sen. Cruz said “The First Amendment is a powerful weapon against the government’s ability to publicly censor its own citizens. But in recent years, we have seen the government censor in secret through third parties, ‘jawboning’ Big Tech into suppressing user content, often under the guise of ‘safety’ or ‘national security.’” He urged the American public to consider how government can often chill free speech through such actions.
Attempts at “jawboning” have drawn significant attention in the digital age, where large social media platforms can feel pressure from government actors that wish to intimidate them to stop carrying certain content. The House Judiciary Committee recently released a letter from Google stating that they felt pressure from the Biden administration to deplatform certain creators, many of whom were recently reinstated to the platform. Sen. Cruz also made mention of the Cybersecurity and Infrastructure Security Agency (CISA) and “unchecked censorship operations” during the previous administration.
The practice of “jawboning” threatens the First Amendment and the American way of life. It is especially insidious as a cudgel against civil liberties given that it is exceedingly hard to prove in a court of law, and plaintiffs very often lack standing to move forward with lawsuits. Sen. Cruz will introduce a measure in the coming weeks to curtail this practice, which should be seen as welcome for all who wish to protect the First Amendment.
But it should extend to broadcasters as well. Treating the airwaves as a public good has been abused since at least the 60s, when JFK’s FCC Chairman Newton Minow gave his famous “Vast Wasteland” speech that decried the state of television programming. Game shows, westerns, police procedurals, and sitcoms were not sufficiently ennobling content in his eyes, ironic given how television has since descended into reality show slop from those halcyon days of wholesome family entertainment.
Minow’s speech eventually led to government-funded public media (which the Trump administration just successfully defunded after five decades) and was used to justify the triopoly of NBC, ABC, and CBS under heavy government regulation. These networks lobbied against license approvals for cable competitors and kept the new technology mostly off the market until the 1980s, when Ronald Reagan’s FCC opened up competition. Ironically, early cable channels like A&E and TLC were dedicated to educational and artistic programming, the very content Minow and his acolytes convinced Congress to fund with taxpayer money.
Minow’s other great legacy was the Fairness Doctrine, which was devised by a pair of union goons known as the Reuther Brothers to put conservative and Chrisitian broadcasters out of business in the 60s and 70s. Their plan was to impose a broadcast regulation that required stations to offer equal time, for free, to anyone mentioned in political programming so they could rebut any argument or attack against them. It also required stations to give free airtime to the other side of every political position expressed on-air. They then stood up a constellation of non-profits to demand free airtime from every station that hosted conservative commentary, which most small stations couldn’t afford, so they dropped the syndicated radio shows.
This strategy proved remarkably successful at crushing dissent. It was not repealed until the Reagan administration in 1987, which has since restored actual fairness and balance to the airwaves.
Both forms of jawboning are inappropriate and offensive to the First Amendment. They are pernicious to a free society. Sen. Cruz is right to stand for free speech, and we look forward to his bill to fight jawboning.