The First Amendment needs all the help it can get these days. Many progressives want restrictions on “hate speech,” while Democrats weren’t shy about pushing private companies to censor “misinformation” during the pandemic. Meanwhile the FCC under a Republican president has threatened to use its licensing authority to punish broadcasters over perceived political slights.
It is against this backdrop that unlikely bedfellows Sens. Ted Cruz, Republican of Texas, and Ron Wyden, Democrat of Oregon, this week introduced the JAWBONE Act, formally known as the Justice Against Weaponized Bureaucratic Overreach and Expression Act. The authors argue that their proposal is necessary to “hold government accountable for censorship and violations of the First Amendment.”
The bill would make it easier for U.S. citizens to sue over federal government infringements of free-speech rights. “Evidentiary and doctrinal hurdles preclude remedies even in cases where the government clearly bullied companies into censoring speech,” Sens. Cruz and Wyden note.
Under the legislation, government agencies would have to submit to Congress certain communications they have with companies. The proposal would also create a “cause of action” against federal bureaucrats or bureaucracies that use their authority to pressure private entities into quashing speech. This would make it easier to aggrieved parties to bring their cases to court. Plaintiffs could seek “damages and reasonable attorney fees,” the bill allows.
“Government interference in online speech is not fiction,” Sen. Cruz noted in a news release. “The Biden administration weaponized the Cybersecurity and Infrastructure Security Agency to pressure Big Tech into ‘canceling’ Americans who spoke out against vaccine mandates and election fraud. Holding the government accountable and giving Americans the tools to fight back is essential. The JAWBONE Act ensures the First Amendment is protected, not undermined.”
Sen. Wyden, for his part, cited “private corporations that are highly susceptible to government pressure” and President Donald Trump “threatening cable companies because he doesn’t like their late-night shows,” as justification for the measure. The legislation, he said, “would provide Americans with the ability to sue when the government illegally coerces censorship and create transparency around government requests to censor speech.”
The bill has the backing of a diverse array of free-speech groups, including the Foundation for Individual Rights and Expression, which has done yeoman’s work defending constitutional rights against campus authoritarians. The act “would be a huge step forward in reining in First Amendment violations by federal officials,” FIRE asserted.
Sens. Cruz and Wyden rarely see eye to eye on issues of the day. The fact that they’ve co-sponsored this proposal during a time of hyperpartisanship in Washington highlights the extent of the problem. Congress should pass the JAWBONE Act without delay.
