Digital platforms’ moderation and recommendation capabilities have been in sharp focus recently with the public debate over Section 230 and with the Supreme Court hearing Gonzalez v. Google oral arguments. This week, the House will vote on another aspect of the moderation debate which has received less attention to date, but has been heating up over the last six months as a result of the “Twitter Files.” NTU supports the passage of H.R. 140, the Protecting Speech from Government Interference Act, which was authored by House Oversight and Accountability Committee Chairman James Comer (R-KY).
The focal point of this legislation is to prevent the “jawboning” of social media companies by federal government entities. This term refers to the practice of federal employees pressuring social media platforms like Facebook and Twitter to suppress the reach of, ban, or place “fact check” warnings on posts and accounts related to topics like COVID-19, elections, and foreign policy.
While private companies certainly have the prerogative to freely moderate the content on their private websites, a topic on which NTU has written extensively, there are limited reasons to involve taxpayer resources in this process. The Bill of Rights only applies to the government, after all. However, it is unlikely that the Framers intended for the government to sidestep these restrictions and pressure private entities into doing this work for them.
Current Supreme Court precedent is murky with cases on the First Amendment/government interference question; two of the most important being Bantam Books v. Sullivan, and Blum v. Yaretsky. As noted by Justice Brennan in delivering the majority’s opinion in Bantam Books, “The appellees are not law enforcement officers; they do not pretend that they are qualified to give or that they attempt to give distributors only fair legal advice. Their conduct as disclosed by this record shows plainly that they went far beyond advising the distributors of their legal rights and liabilities. Their operation was in fact a scheme of state censorship effectuated by extra-legal sanctions; they acted as an agency not to advise but to suppress.”
This opinion should still hold merit today. When applied to physical reality, if the government pressured private security companies to detain, search, or seize disfavored citizens’ personal belongings, then that would certainly seem problematic on Fourth Amendment grounds. Merely operating at arm’s length does not protect the government from constitutional scrutiny.
Therefore, it seems unreasonable to give the federal government carte blanche to overstep its strictures simply because it is not the actual tool for implementation for its desired outcome. Although not as strict as rulemaking, guidance, or other enforcement mechanisms, expressed preferences for private activity have immense weight when expressed by federal agencies - such as the Federal Bureau of Investigation or the White House.
The federal government may certainly have grounds to weigh in on national security nexuses on certain information and immediate law enforcement concerns such as terrorism, child exploitation, or classified leaks, but this is why the legislation contains exceptions and reporting requirements for these instances.
NTU has always stood by the principle that private companies should be allowed to manage their own platforms. However, Section 230 liability protection and government jawboning are not as closely related as some observers believe. In the case of government jawboning, the primary issue is using government resources to affect Constitutionally-restricted outcomes in private actors. The Protecting Speech from Government Interference Act would strengthen the Hatch Act by preventing taxpayer resources from being used to pressure companies into doing what a federal agency wants them to - with appropriate exceptions and reporting requirements. NTU applauds Chairman Comer for this timely and important legislation and supports its immediate passage.