FCC member Anna Gomez has been describing what happens when a federal regulator leans on broadcasters over programming it dislikes.
This month, she endorsed the JAWBONE Act, a Ted Cruz bill that would let the broadcasters and platforms on the receiving end of that pressure haul federal officials into court and collect money from them.
Punchbowl News reported the endorsement on July 14. The bill Gomez is backing, S. 4749, carries the name Justice Against Weaponized Bureaucratic Overreach to Networked Expression, which nobody will ever say out loud, and it was introduced on June 11 by Cruz and Oregon Democrat Ron Wyden.
It would make it unlawful for any federal agency, or any officer or employee acting “under color or pretense of office or employment,” to coerce or attempt to coerce a broadcaster, an online platform or an AI provider into taking what the text calls a content action, meaning adding, altering or deleting speech.
Coercion is defined broadly as “to take a harmful, hostile, or unfavorable action, to imply the possibility of taking such action, or to threaten such action.”
The prohibition reaches conduct undertaken “for the purpose of, or if a reasonable person would understand the coercion or attempted coercion to be for the purpose of, incentivizing the broadcaster or provider to take a content action.”
The bill then lists eight factors a court should weigh in deciding whether something counts as coercion. Read them against the record built in Missouri v. Biden and the fit is almost exact.
Courts are told to consider the word choice and tone of the communication, whether the official had regulatory or enforcement authority over the recipient, whether the communication referred to adverse consequences, whether it was public or private, whether it carried a disclaimer saying it lacked legal force, and whether it led the recipient to act contrary to its own policies.
Two of the eight cut the government’s way, asking whether the communication carried “a factual statement without legal force that could be useful to the decision-making of the recipient” and whether it “was for the purpose of aiding compliance with existing law.”
The findings concede the point: “not all government communication to a private speech platform is coercive.” The government does not need a license over Facebook to have leverage over it. It has Section 230 and it has the antitrust division.
Consider what that leverage produced in the summer of 2021. Rob Flaherty, the White House director of digital strategy, ran a sustained campaign of emails and meetings aimed at Facebook’s moderation of COVID content.
The Fifth Circuit found he had demanded internal policy details at least twelve times, pressing the company on what content was being demoted, what interventions it was making, and what measurable impact any of it had.
He told the company the White House was “gravely concerned” that Facebook was “one of the top drivers of vaccine hesitancy,” accused it of running a “shell game,” and, when an answer was slow, wrote: “Are you guys fucking serious? I want an answer on what happened here and I want it today.”
Hellbound and Down 