Four Simple Reforms to Address Government Jawboning and Protect Speech
The First Amendment establishes strong protections against direct government attacks on free speech. Because of this, government actors will sometimes look to indirectly influence speech to evade court scrutiny. In this regard, “jawboning” is a growing and particularly problematic trend. Jawboning refers to government pressure on private platforms, which can take many forms. That includes foreign regulators dictating content rules to American companies as well as domestic officers acting with effective impunity against speech rights.
Agencies or laws that enable jawboning could be reformed or eliminated to address this problem. This is usually politically infeasible, however, necessitating second-best solutions that limit abuse using more targeted reforms. Four proposals, arranged from the most surgical to the most structural, would meaningfully expand protection for American expression by limiting or discouraging jawboning by governments.
A “Bivens fix” to hold federal officials accountable
The first reform is a statutory cause of action for First Amendment violations committed by federal officers. Under US Code 1983, citizens whose constitutional rights are violated by state and local officials have a clear path to court. People who have their First Amendment rights violated by federal officials, however, have no equivalent remedy. The judicial vehicle that once filled that role, the Bivens doctrine, which gives citizens standing to sue federal officials for constitutional violations, has been narrowed almost to extinction. In Egbert v. Boule in 2022, the Supreme Court declined to extend Bivens to First Amendment retaliation claims, holding that Congress is the appropriate body to craft such a remedy. Congress should amend US Code 1983 to extend its protections to First Amendment violations committed by federal officials, essentially creating a Bivens doctrine for the federal government.
Stopping foreign thuggery
The second reform is a federal shield against foreign censorship. European regulators have imposed multimillion dollar fines on American platforms under the Digital Services Act, and the United Kingdom’s Office of Communications has threatened U.S.-based companies with penalties reaching ten percent of each respective company’s worldwide revenue. A House Judiciary investigation documented over 100 closed-door meetings in which European officials pressured American firms to adopt globally applicable content moderation rules. Because many online platforms typically maintain a single set of terms and conditions worldwide, foreign demands create a “Brussels effect,” by which extraterritorial rules effectively dictate what Americans can say and see online.
The GRANITE Act, which is moving in several states, represents an early legislative attempt to confront this problem, allowing state residents to sue foreign governments that try to enforce censorial policies against American speech. The instinct is right, but the venue is wrong. Foreign affairs, trade relations, and the enforcement of international legal norms are quintessentially federal concerns, and a single state cannot meaningfully deter the European Commission from trying to indirectly control speech on American platforms.
The federal SPEECH Act of 2010, which prohibits American courts from enforcing foreign defamation judgments that fail to meet First Amendment standards, offers the better structural model. Congress should expand that framework to cover the full spectrum of foreign content regulation, allowing individuals and corporations to file claims and empowering the U.S. government to sue foreign governments on their behalf. This approach gives companies meaningful recourse against the chilling effect of foreign enforcement threats while avoiding the speculative litigation that sprawling private rights of action tend to generate.
A Murthy fix to create constitutional parity and statutory clarity
The third reform is a broad-based statutory protection against domestic jawboning. The Supreme Court’s 2024 decision in Murthy v. Missouri exposed how difficult it is for individuals to obtain judicial relief when the government outsources censorship to private platforms. The Court held that no plaintiff had Article III standing to seek an injunction, despite a record spanning over 26,000 pages of documented contacts between federal officials and social media companies. The traceability requirement, which requires plaintiffs to demonstrate a clear causal chain between government requests and citizen speech, proved nearly impossible to satisfy. Plaintiffs had to demonstrate that a specific government defendant pressured a specific platform to censor a specific topic before that platform suppressed a particular plaintiff’s speech on that topic. By the time a pressure campaign is well enough documented to prove, the government can argue it has already concluded and any case can therefore not satisfy the traceability requirement. Congress can break that cycle by creating a statutory cause of action that does not depend on the restrictive traceability framework Murthy applied. The distinction the Court articulated in National Rifle Association of America v. Vullo in 2024 between legitimate persuasion and unconstitutional coercion provides a useful doctrinal anchor. Congress should explicitly state the limits of federal communications and essentially place the Vullo standard into statute. At a minimum, Congress should require full transparency of these types of communications through some official portal or logging mechanism. If a reasonable person feels that communications or threat of regulation is based on viewpoint discrimination, that would be against the law. Federal officials currently operate with no formal legal boundaries on the pressure they can apply to speech they disfavor.
Constraining vague FCC and FTC powers
The fourth, and most structural reform, is stripping the Federal Communications Commission (FCC) of its open-ended “public interest” authority, and limiting the Federal Trade Commission (FTC’s) ability to jawbone via investigation and antitrust law. The FCC’s nearly century-long record is a bipartisan chronicle of speech suppression, from 1930s targeting of conservative broadcasters, through later weaponization of the Fairness Doctrine, to current pressure campaigns against broadcasters and platforms over editorial judgments. The agency’s discretionary control over broadcast licensing has also always been problematic. And the idea that “spectrum scarcity” justifies broadcast’s diminished First Amendment status was a myth upon conception and remains one now because the lack of wireless spectrum options was caused by government itself. In an era of media convergence, the regulatory asymmetry between broadcasting and other media is indefensible. Identical speech receives full First Amendment protection on a podcast and diminished protection on a broadcast radio station.
Congress should therefore eliminate the “public interest standard” from communications law, or at least more tightly define it to constrain jawboning and censorship. This phrase appears repeatedly in communications law, but lacks any strict definition and has been abused. Congress should also end the FCC’s authority to condition licenses on content judgments, and then let broadcasters operate under the same constitutional rules that govern every other medium.
The FTC has similarly inserted itself into free speech matters by using its power to initiate civil investigative demands and conditional merger approvals based on ideologically driven antitrust enforcement. Congress should consider legislation that would build on recent rulings against the FTC, which state that antitrust enforcement cannot violate First Amendment principles or be based on speech-related matters.
Simple, Targeted Reforms to Protect Speech
The First Amendment does not have a broadcast exception, a federal-officer exception, a foreign-regulator exception, or a sophisticated-jawboning exception. Unfortunately, some government officers act as if they do have these exemptions. The four reforms outlined in this piece address these problems in a targeted fashion. Closing the Bivens gap and building a federal shield against foreign censorship are narrow, technical adjustments. Comprehensive anti-jawboning legislation is a broader intervention, reshaping the legal terrain on which government officials interact with private platforms. Stripping the FCC of public interest authority is the deepest reform, addressing the root cause of nearly a century of administrative overreach. Each is independently valuable and closes a gap the others leave open. Pursued together, they would restore something closer to the constitutional baseline where government has no role in what citizens say.