The Bipartisan Push to End 'Jawboning': How the JAWBONE Act Aims to Stop Government Coercion of Tech and Media

In an era defined by intense partisan gridlock, a rare consensus has emerged in the United States Senate regarding the First Amendment. Senators Ted Cruz, a Texas Republican, and Ron Wyden, an Oregon Democrat, have joined forces to introduce the Justice Against Weaponized Bureaucratic Overreach to Networked Expression (JAWBONE) Act. The legislation targets a growing, bipartisan concern: the federal government’s use of informal pressure to force private companies to censor lawful speech.[3]

The practice at the center of the bill is known as "jawboning." It occurs when government officials—who are strictly prohibited by the First Amendment from directly censoring expression—use their authority to coerce private intermediaries into doing it for them. This pressure can take the form of a raised eyebrow from a regulator, a pointed letter from an agency, or a quiet threat to initiate legal proceedings or revoke licenses.[1]

For years, the public debate over free speech in the digital age focused almost entirely on whether private technology companies were moderating too much or too little content. However, a different concern has now moved to the forefront. Civil liberties advocates argue that the most significant threat to free expression is no longer the platforms themselves, but the government officials who secretly dictate the platforms' actions from behind the scenes.

The JAWBONE Act is born out of a shared frustration that spans the political spectrum, as both major parties have watched the machinery of informal coercion turn against speech they value. The legislation affirms a foundational constitutional principle: the government may not do indirectly what it is forbidden to do directly.[1][2]

For conservative lawmakers like Senator Cruz, the primary grievance stems from the Biden administration's interactions with Silicon Valley. Cruz and other Republicans have heavily criticized executive branch officials and agencies, such as the Cybersecurity and Infrastructure Security Agency (CISA), for pressuring social media platforms to suppress content related to the COVID-19 pandemic, vaccine efficacy, and election integrity.[2]

Conversely, progressive lawmakers and tech watchdogs point to the Trump administration's use of the bully pulpit and regulatory threats. Senator Wyden has highlighted instances where the former president publicly threatened the broadcast licenses of television networks over late-night comedy routines, such as those by Jimmy Kimmel. Wyden's office also noted instances of the Trump administration pressuring app stores to remove tools used by immigration advocates.[3]

Despite these clear examples of government pressure, victims of jawboning have historically found themselves with almost no legal recourse. The courts have established evidentiary and doctrinal hurdles that make it incredibly difficult to hold federal officials accountable. Injunctions often evaporate when an official leaves office, and damages actions against federal employees have narrowed to a vanishing point.

The legal landscape was further complicated by the Supreme Court's recent decisions in cases like Murthy v. Missouri and NRA v. Vullo. In these rulings, the Court set a high bar for plaintiffs, often requiring them to prove not only that the government applied pressure, but that the pressure was the direct cause of the platform's decision to censor the speech. Because platforms have their own First Amendment rights to moderate content, proving that they acted solely due to government coercion has proven nearly impossible.[1]

The JAWBONE Act fundamentally rewrites this legal standard. If enacted, the bill would create a direct federal cause of action allowing citizens and companies to sue any government agency, officer, or employee who coerces or attempts to coerce a private intermediary. Crucially, the legislation allows a jawboning claim to proceed regardless of whether the coercion actually succeeded in silencing the speaker.

By removing the causation requirement, the bill answers the exact legal problem that has sunk so many previous lawsuits. It establishes that the constitutional violation occurs at the moment the government applies the coercive pressure, not just when the platform capitulates.[2]

The legislation also introduces a powerful deterrent: personal financial liability. If a federal official is found to have engaged in jawboning "willfully and wantonly," they could be forced to personally pay monetary damages to the victim. This provision is designed to incentivize federal employees to strictly adhere to First Amendment boundaries when communicating with media and technology companies.[1]

Beyond creating a pathway for litigation, the JAWBONE Act builds a comprehensive transparency regime to drag secret government pressure campaigns into the light. The bill requires federal agencies to log their communications with private intermediaries regarding content moderation and user expression.

These logs would be subject to inspector general audits, and the legislation mandates the creation of a public portal where certain covered communications must be disclosed. This transparency ensures that users know when they have been targeted by government censors, and it provides platforms with a formal complaint channel if they believe they are being subjected to undue pressure.

The scope of the JAWBONE Act is notably broad, reflecting the modern realities of how information is distributed. The protections extend beyond traditional broadcasters and social media platforms to explicitly include providers of artificial intelligence systems. As AI models increasingly become the primary chokepoint for information retrieval, the bill ensures that government officials cannot quietly pressure AI companies to alter their outputs or suppress specific viewpoints.[1]

Drafting legislation that curbs coercion without chilling legitimate government functions is a delicate balancing act. Government officials must remain free to share information, advocate their policy views, respond to national security emergencies, and enforce existing laws. The JAWBONE Act attempts to navigate this by codifying a clear distinction between permissible persuasion and impermissible threats, including specific carve-outs for legitimate law enforcement activities.

The introduction of the bill has triggered an unprecedented alignment of civil liberties organizations. The legislation has been enthusiastically endorsed by a coalition that includes the American Civil Liberties Union (ACLU), the Electronic Frontier Foundation (EFF), the Foundation for Individual Rights and Expression (FIRE), and the Knight First Amendment Institute, alongside numerous conservative advocacy groups.

For these organizations, the JAWBONE Act represents the clearest sign in years that legislative momentum is shifting toward robust First Amendment protections in the digital public square. While the bill faces the usual hurdles of the legislative process, its bipartisan sponsorship and broad ideological backing suggest that the era of unchecked government jawboning may soon face its most significant legal challenge yet.