The JAWBONE Act: Government Shouldn’t Dictate What Americans Can Say

Some Americans might recall posting their view about COVID-19 on social media, only to see their post disappear hours later and the platform claim the post violated its policies. What they might not know is that those “policies” likely reflected the will of a government official privately pressuring the company to remove the disfavored post. This exemplifies government jawboning, which occurs when officials pressure private intermediaries such as social media platforms, broadcasters, or artificial intelligence (AI) providers to suppress speech that the government cannot restrict directly. This pressure often includes threats of regulatory consequences.

To curb such abuses, Senators Ted Cruz (R-Tex.) and Ron Wyden (D-Ore.) recently introduced the Justice Against Weaponized Bureaucratic Overreach to Networked Expression (JAWBONE) Act, bipartisan legislation intended to provide greater government accountability and transparency. Whether led by a Republican or Democratic administration, such backdoor censorship campaigns threaten the marketplace of ideas. The JAWBONE Act is an important step toward ensuring that officials do not try to circumvent the First Amendment limits on government’s reach.

Jawboning is a bipartisan vice. Following the 2020 election, Biden administration officials were accused of pressuring social media companies to remove speech related to COVID-19 and the 2020 election. Likewise, following Charlie Kirk’s assassination in 2025, the Trump administration’s Federal Communications Commission Chairman Brendan Carr pressed broadcasters to drop Jimmy Kimmel Live!, threatening regulatory consequences because of criticism Kimmel directed at President Trump and other Republicans. Both parties are guilty of jawboning, and no administration is immune from the incentives to engage in it.

In NRA v. Vullo––in which a New York State insurance regulator who opposed the National Rifle Association (NRA) threatened to fine the NRA’s insurance company unless it dropped the NRA as a customer––the Supreme Court reaffirmed that government jawboning is unconstitutional.

Many people are unaware that they were targeted by jawboning. Typically, the government applies coercion to intermediaries privately, concealing the First Amendment violation from its victims. In addition, suing for indirect censorship has proven challenging. For example, in Murthy v. Missouri, the Supreme Court did not rule on whether the alleged jawboning violated the First Amendment. Instead, it held that the plaintiffs had not sufficiently demonstrated standing, highlighting the difficulty victims of indirect censorship face. When censorship occurs through backdoor means, proving a case requires that the third party involved provide evidence for the victim. Furthermore, plaintiffs cannot seek monetary damages from the federal government officials for violating their First Amendment rights. Even when suing is an option, as the Foundation for Individual Rights and Expression (FIRE) explains: “You can sue to make them stop violating your rights, but you can’t sue to make them pay.” These barriers help explain why unconstitutional jawboning can persist even after courts have recognized its dangers.

The JAWBONE Act proposes three reforms. First, the bill would allow victims to seek monetary damages regardless of whether the censorship is successful. This reform would provide victims with a clear legal remedy. Next, it would ensure that a First Amendment violation is recognized as such even if censorship never succeeds. Establishing liability for attempted coercion recognizes the chilling effects of backdoor censorship. Lastly, the bill introduces a new transparency mechanism––a portal where government employees would be required to log summaries of certain communications with targeted businesses––that would ensure that victims of jawboning are made aware of it and able to compile the evidence necessary for trial.

The JAWBONE Act is thus a strong start in combating government coercion; however, the bill is not perfect. The appropriate line between protecting constitutional rights and government interests is hard to draw, and the Act permits communication with platforms for legitimate government functions such as to share information, respond to emergencies, enforce lawful investigations, and warn about criminal activity. However, these exceptions enable obvious loopholes. For example, if an agency possesses licensing authority, even a polite comment or suggestion could carry an implicit threat that might influence speech without rising to the level of unconstitutional coercion. Additional reforms may eventually be needed. Nevertheless, bipartisan support demonstrates how the bill strikes a reasonable balance; it is a long-overdue step in the right direction.

Government intimidation and back-channel pressure are antithetical to America’s robust tradition of free speech. If government officials continue to sneakily resort to indirect censorship, freedom of expression can hardly be deemed secure. The JAWBONE Act would help ensure that constitutional protections do not devolve into mere words on paper.