‘Jawboning against Speech’ with Will Duffield
2023-01-31 · Guest: Will Duffield (Cato Institute Policy Analyst) · 52:46
Government jawboning and informal coercion of private entities
Bob Zadek and Will Duffield discuss “jawboning,” the practice of government officials using informal pressure and threats to coerce private companies into censoring speech or restricting legal activities. They explore the history of this tactic, from 1970s price controls to modern-day pressure on social media platforms and banks.
Topics: Jawboning, First Amendment, Twitter Files, Operation Choke Point, Free Speech, Cato Institute Speakers: Bob Zadek (Host), Will Duffield (Guest)
Defining Jawboning [00:08]
Bob Zadek: Welcome to the Bob Zadek Show, your home for insight and in-depth analysis. Listen live right here or join us at BobZadek.com. That’s Z-A-D-E-K. BobZadek.com. The Bob Zadek Show: Ideas, not attitude; information, not talking points.
Hello, friends. I’m Bob Zadek, host of the country’s longest-running libertarian broadcast, nationally streamed at 8:00 a.m. Pacific time, Sundays on the 860 AM app. The archives of my Bob Zadek Show podcast hold 15 years of discussion of major issues which remain relevant today, and thus provide the perfect historical perspective for the remaining impediments to our well-being. Always with the ideal guest—accessible and entertaining.
Today’s guest, Will Duffield, exceeds those standards. Will is a policy analyst in the Center for Representative Government at the Cato Institute, whose work has appeared in the Cato Journal, the Legatum Institute, and the Adam Smith Institute. Will, welcome to the show.
Will Duffield: Thank you for having me, Bob.
Bob Zadek: The Bill of Rights, although technically the first ten amendments to the Constitution, are actually part of the original document in that many states which voted to ratify the Constitution did so on the express condition that the first Congress immediately adopt the express reservation of rights by the people, which government lacked the power to infringe—and so it did.
But what if the government found an end run around these rights? A loophole, if you will, whereby the free speech guaranteed to us in the First Amendment could be infringed with impunity? Where would we be? Today’s show will examine that issue. Now, Will, you have written about the issue which we’ll head up by using the word “jawboning.” And as the audience will learn in about four seconds, what is jawboning, Will? Tell us in the broad sense—we will, of course, drill down—but in the broad sense, once you explain jawboning, how is that the buzzword for the government’s end run around the Bill of Rights?
Will Duffield: So, it’s a strange word in a way, but it means government bullying or informal pressure. Coercion is usually aimed at a middleman, intended to push them to silence or otherwise interfere with some third party that the government can’t get at on its own. So, it’s a way for the government to exceed its lawful or constitutionally enumerated powers by leaning on private actors to do what the government can’t.
Bob Zadek: So jawboning, in effect, gets a private citizen or a company to do for the government what the government cannot do directly because it’s prohibited. So it has a private, a secret actor. Now, my audience will recall perhaps this issue popped up, I guess, for the first time on my show when the government threw its power over banks. The government had great power over banks. Why? Because banks are regulated, and banks need permission to do lots of things which banks want to do simply to earn money—for example, acquiring another branch or acquiring another bank.
So banks as a collective, banks as an entity, cannot really increase their profits without permission. Well, permission comes with conditions. And in the case of banking, governments using their power over banks took the position that governments held gun shops, for example, or dating websites or things of that nature in disfavor. Now, even selling cigarettes—those activities were lawful, so government could not attack gun shops directly.
So, what did they do? Government, through its control of the banks, let the banks know, kind of informally—wink and a nod kind of informally—that, “Well, banks, sooner or later you’re going to come to us for permission to do something. We are more likely to give you permission to acquire a branch; we are more likely to do so if you start to deny checking accounts to gun shops.” And the banks, in recognition of the enormous power government has, simply started to reject gun shops for deposit accounts. Without a deposit account, an enterprise cannot transact business. So governments were able to attack gun shops through the influence on banking in a way they never could do because gun shops were lawful activity. Now, that was six or seven years ago, something like that. And my—I’m sorry, go ahead, Will.
Historical Precedents and Operation Choke Point [06:15]
Will Duffield: This problem goes back even further, but I think that example helps to show that it’s not always about speech. I’ll be speaking about jawboning in a speech context, but going all the way back to the 1960s and early 1970s, there were a lot of attempts by the executive to control prices. We were in a time, perhaps like the time we’re in now, of record inflation. And in order to hold and keep office, presidents were trying to tamp down on prices.
And one of the ways they tried to do this was just by bullying producers, threatening them with, in some cases, fewer government contracts or stiffer regulation if they increased prices. And this activity—using their speech to bully—was then, in a perhaps more religious society, likened to Samson’s vengeance against the Philistines in the book of Judges, where with the jaw of an ass, he slays a thousand men. Presidents Kennedy and Carter’s speech here was deemed the product of the jaw of an ass. Nevertheless, it could slay the nation’s bankers and businessmen and keep them in line.
So that’s really where the phrase comes from. But since then, the sort of activity that it can be used to describe has moved from this financial space to things like Operation Choke Point and that kind of control through banks and financial intermediaries. And as you point to, because banks are so strictly regulated already, the government has a lot of potential levers they can use to punish a bank that isn’t willing to act on the state’s behalf. And so anywhere you have—the more interaction a given industry has with the government, be it through regulation or government contracts, the more vulnerable it is, or firms within it are, to jawboning.
The Twitter Files and Government Coercion [12:30]
Bob Zadek: Now, Will, you have become—witness this show—you have become all of a sudden, forgive me, a media darling. You now are sought after. You have to block calls because so many people want to hear what you have to say. And all of that is the result of, in general, jawboning; more specifically, Elon Musk’s adventure in purchasing—it seemed impulsive to me—purchasing all of the stock of Twitter. Now he owns Twitter the way I own my laptop, and I can do what I want with it. And he has, in what seemed like an economic activity—and maybe with some political motivation, who can tell, a bit mercurial—here we have Elon Musk in an economic activity, buys all of the outstanding stock of Twitter.
That set in motion the Twitter Files, which I’ll ask you to explain, and the baring of some scary level because it affects the First Amendment—a scary aspect or new approach of jawboning, challenging core free speech in America. Tell us how Elon Musk got you to be, not collateral damage, but collateral benefit, a media darling talking about jawboning.
Will Duffield: So there are two important streams of information about jawboning recently. The one that you identify has been the Twitter Files, thanks to Elon Musk. And these are a collection of documents released by a number of different journalists from Twitter over the past three or four years. They recount decisions that Twitter has made and engagements that it has had with the federal government.
Bob Zadek: I’m sorry, I don’t usually do this. You said “decisions that Twitter has made.”
Will Duffield: Or to remove foreign influence. But it was only through these Twitter Files that we got the kind of private side of that story or the after-effect, where after being browbeaten by Congress, jawboned by them, then platforms turned to or allowed first the FBI and then a kind of alphabet soup of intelligence community agencies, State Department operations, et cetera, to forward on requests, all in the background, while Congress is threatening to regulate them if they don’t do more.
So these Twitter Files—and importantly, a series of lawsuits by the states of Missouri and Louisiana aimed at the CDC and the Biden administration, which have revealed a lot of their communications with Facebook—look fairly similar to what we’re seeing in the Twitter Files. This wasn’t just aimed at one platform, but at many. Platforms really failed to do their due diligence, didn’t have the time or resources to, and defaulted into a place of accepting these government demands and removing speech in response to them.
Bob Zadek: So in other words, when you said—and I corrected you—you said Twitter made a decision. I will expand upon that. Yes, they did make a decision, but it was the kind of decision explained by a dark alley, a gun at your head: your money or your life. Well, yes, you’re given a choice, but not quite.
Will Duffield: Yes, jawboning is often compared to the kind of mafioso suggestion that you have an awfully nice business there.
Bob Zadek: It would be a terrible shame if something were to happen to it. So we have—so my audience will, I suspect, promptly realize that we start with governmental power. And government jawboning would not be in the vocabulary if it were not for the power possessed by the jawbone—or, to invent a noun. So we start with the power, and there is a phrase in economics: “The power to tax is the power to destroy.” For the purpose of this conversation, I’ll modify it: the power to regulate is, in both cases, the power to destroy. It’s just a different weapon.
The creation of the power. So Twitter, all during this period—and when I say Twitter, of course, I mean all social media. Twitter is a placeholder for social media on this broadcast today. Twitter knows full well their life could be hell if the power of government lawfully—because the government has the power—is aimed towards them. They could be taken apart; they could be attacked on antitrust grounds; they could be attacked on all kinds of grounds. We’ll get to Section 230 in a second, another area where the social media was feeling vulnerable, just as banks are vulnerable when we talk about the banks being persuaded to use their power.
The Power to Regulate is the Power to Destroy [14:45]
Will Duffield: And that’s an important part of this discussion. Because especially before these Twitter Files became public, before we knew about the level of engagement the CDC had had with Facebook, we took these decisions to be solely private, and platforms suffered reputational harms as a result. We thought of them as biased or out to get us in some ways at times. Until we had these tranches of emails and the like, we were able to see government’s hand behind the scenes. So all of the costs to these government decisions about what speech should be allowed or what’s safe in the name of public health, all accrue—the costs of them all accrued to these private companies trying to make it in a fierce market.
Bob Zadek: And since we are talking about free speech for this hour, and we are talking about the First Amendment, let’s bear in mind that our government cannot—and the Supreme Court has been, I think this is accurate, more aggressive than ever in recent memory. The Supreme Court, by dint of its present composition, has been very aggressive in protecting First Amendment rights. And therefore, the government has found itself more restricted than ever before by the inconvenience of the Constitution.
Will Duffield: Because those formal protections are so strong, both compared to in the past, but also compared to other countries, then we’ve ended up with a lot of jawboning in America to control online speech. Because in other countries, in response to what a law professor named Eugene Volokh calls the “deluge of cheap speech” that the internet has brought—everyone being able to publish about things almost costlessly that previously wouldn’t have warranted the price of postage or the paper it was written on—in other countries, they’ve responded, those upset by this who feel like people are saying things they don’t want to hear, responded with outright censorship. In Germany, in Turkey, they’ve passed new laws restricting what people can say online. This is bad. But in the United States, thankfully, because of the First Amendment, politicians or powerful figures upset by what others have said about them can’t do that. Unfortunately, instead, they do have this capacity to jawbone because they have so much power elsewhere.
Bob Zadek: So once again, Will reminds us that jawboning is the exercise—and I’ll say improper. I’m not saying illegal, that’s today’s topic, but certainly by our cultural standards, by our standards as part of being in our country, improper—the government is able to perform improper acts indirectly because it is given the power to do so. And if you trace it back, whenever we complain about government being too controlling, exceeding what we believe to be its authority, it’s always traced back to the government being forbidden from doing something directly, and the government finds an end run around it.
And the instances of evasion from the government having an income tax, collecting all kinds of money from the states and from the citizens, and then using that to affect national policy, which—take the speed limit. Government can’t control the speed limit, but the government says, “You’re going to be driving on dirt roads unless you get the money from us to put pavement down, and if you want to put pavement down, 55 miles an hour is the limit.” So government doesn’t have the power under the Constitution to regulate speed limits. One is regulation, one is money; the government forces its will by doing an end run. And that’s what jawboning is. It’s a different power than using money, but the result is the same. The government gets to do something which is expressly forbidden in the Constitution; it does so indirectly by using surrogates. Now, Will, I think you were going to say something.
Will Duffield: Oblique to the threat. So when the threat and the demand are, you know, essentially one and the same, it’s not jawboning. You say, see proposed changes to Section 230. Some politician doesn’t like a certain form of speech. He says, “I’ll expose you to liability, so you’ll have to take down that speech or you’ll be sued.” Well, we might not like that attitude, but it’s not jawboning there, because the proposed legislative change will do exactly what he’s asking the platform to do anyway. However, if he goes and says, “I’ll change antitrust law and you’ll have to be broken up,” well, that looks a lot more like jawboning, because even if you were broken up, you wouldn’t have to take down the speech in question. And that has nothing to do with antitrust. Antitrust is just being used as the cudgel or the threat to get the private actor to do what they couldn’t be ordered to do directly.
Section 230 and the Twenty-Six Words [22:00]
Bob Zadek: I’m so glad you mentioned Section 230, because that statute has a role to play. And this is the perfect show to do a reminder or a primer on 230. Section 230, specifically, I think it’s Section 230(c)(1). That’s—remember, it’s often been referred to, and indeed I had a show where I used that phrase, as the “twenty-six words that created the internet.” Section 230 is part of the Communications Decency Act of 1996. And it purports to create, and it does effectively create, an environment where free speech is virtually assured in social media. There would not be social media today without Section 230, and yet Section 230, which was enacted in order to encourage in the broadest possible way that anybody’s opinion has an outlet—nothing could be healthier for society than that. But now Will has mentioned, and I’ll ask him to explain, how this statute—it’s a bit of hyperbole, but it has truth to it—the twenty-six words that created the internet, how that now comes into a conversation about suppressing free speech. So tell us how this statute, which was forward-thinking and enlightened when drafted, now enters into a conversation on censorship.
Will Duffield: Well, I think this problem of jawboning illustrates how important Section 230 still is in many ways.
Bob Zadek: Well, do tell us so the audience can follow what it is. We’ve talked about it before, but not everyone listened then. Section 230—it’s been our little secret, but let’s share it.
Will Duffield: It is an intermediary liability protection that prevents platforms, or really any website that hosts user speech, from being treated or held liable as the publisher of that user speech. So it ensures that responsibility for what anyone says online rests with the speaker and not whoever is carrying or providing a platform for their speech. And without it, platforms would have to do a lot more policing of what their users say, because they could be sued over something they didn’t catch or remove that libels someone or is otherwise illegal or litigable.
So in a world without Section 230, where platforms are liable for what their users say, then jawboning would be even more threatening and dangerous because you’d always run the risk, if you didn’t obey the government takedown request, that that would even come up in court later. “See, the government warned you that this content was dangerous, and yet you still failed to remove it. Well, it doesn’t look good for you, Mr. Platform.”
I think it, you know, as a protection there, when we think about the exercise of informal power, there are a lot of other levers government can pull to get at platforms, but the threat of a lawsuit from a friendly NGO isn’t one of them. And when we see how some non-governmental organizations, civic society groups, have essentially provided sort of targeting information for government to use in its jawboning efforts—something like the “12 super spreaders” identified by the British NGO this summer and then taken out by the Biden administration as the worst of the worst in COVID disinformation. Never mind that one of them was RFK Jr.
Bob Zadek: Um, then we ought to be thankful for the protections that these platforms do have, or the grounds on which they have to say, “No, government, go pound sand. You can’t threaten us with that.”
And Section 230—without Section 230, it is claimed, plausibly, that social media simply could not exist in its present form. And therefore, as an economic activity, it would fail; it would fall apart. So the internet is dependent as we are dependent upon oxygen. Social media is that dependent—I am not exaggerating—on Section 230.
So now you have government, whether it’s the legislative branch, as Will has said, or the executive branch—and Will will give us examples of Biden doing… when I say Biden, I’ll say the Biden White House using jawboning also. We have government contacting social media quite directly and saying, “You would not exist. We created the oxygen that you live off, and we can just as easily amend or repeal Section 230 if you make us unhappy.” And that’s the truth, especially when you have non-divided government, when you have one party controlling. Now that threat gets taken seriously.
And so, armed with that, again, that power of life and death—of course, when legislators, when Senator Hawley or Marco Rubio… “Hi, I’m a senator, and I have a thought I’d like to share with you.” That call doesn’t get blocked. That call gets listened to. And because the threat is real, just like with banking, as we said earlier. So therefore, government says, “We would prefer that you not censor”—that word is never used—“but that you make it far more difficult for your customers to find content that we disapprove of.” But you’ll find the same effect. Go ahead.
Will Duffield: And sometimes they’ll say they’re just asking questions, but they’ll demand a response. You know, “What action have you taken about this problematic speaker? Why haven’t you taken that action?” And, you know, we think about that in a sort of speech context. Can you imagine a newsroom being hauled into Congress and asked why it did or didn’t run a particular op-ed? That would be absurd. But with social media, platforms have at least perceived the rules to be a little different.
They’ll also—and you know, I think when we’re talking about speech removal, which is the majority of jawboning cases by far—we can forget that platforms do have a right to refrain from hosting speech as well. There are speakers that they might not want. And sometimes jawboning can take the form of must-carry demands, saying, “We’ll punish you if you don’t continue to host this speech or speaker.” And that can make it hard for any forum operator to maintain the kind of conversation that they’d like.
And finally, one of the most, you know, I think pernicious forms of jawboning are just outright allegations of illegality, even when the underlying speech would certainly be protected by any court in the land. You look at something like… Steve Bannon made some hyperbolic statements about Anthony Fauci the other year, saying that if he were a Tudor-style king, then he would put his head on a pike. And Senator Richard Blumenthal claimed that this was a death threat, and that Bannon should be banned from YouTube for threatening the life of Dr. Fauci in this illegal way.
Now, clearly that speech is hyperbolic. It’s protected as opinion. No one anticipates Steve Bannon actually going out and trying to lop Fauci’s head off. That would be ridiculous. But nevertheless, in an attempt to jawbone or bully YouTube into silencing and censoring him, Blumenthal claimed that this speech was unlawful when it wasn’t. So there are many ways to skin a cat, and there are many ways for government to cast speech as worthy of removal or present it as the least painful option for a social media platform.
Historical Precedents and the Licensing Power [33:25]
Bob Zadek: And to put this in an historical context, I did a show probably seven or eight years ago. It was a show that discussed in part the history of radio. And we spent a lot of time on the show when radio was the first electronic mass media. And there was no television. And the government by statute regulated who was given the right to use the airwaves to broadcast. You had to get a license.
“License” is one of the most hateful words in the language. Permission from government to do an otherwise lawful act. That’s what a license is. Take something that is totally lawful, doesn’t hurt anybody, and yet you need government permission. And the reason I mentioned that in this context is that there was a requirement for decades that in order to keep your broadcast license, your programming had to be, quote, “in the public interest” and balanced, which means the government decides if you’re broadcasting the right stuff.
So the history of the government using its power—in this case, the license, once again, life and death power—to censor and regulate speech on the airwaves, which it otherwise could not do… this is… governments forever have learned how to do this. So this is not something new to Twitter or to Facebook. It has a very powerful and full historical context. Now, Will, it would be… I’m sorry.
Will Duffield: I’m glad that you brought up the history of this because I think it’s really important to recognize or juxtapose with contemporary jawboning to see why contemporary online jawboning is so hard to combat or even address through the courts.
So there’s a case in the 1980s, Carlin Communications v. Mountain States, about a phone sex hotline that was disconnected by the phone company after the phone company was threatened by the local district attorney. It sounds like, you know, kind of silly ’80s small-town politics, I guess, but you know, a real impact on this phone sex hotline operator. So they sued, and the district attorney’s actions were found to be illegal. But the only remedy the court could offer was reconnecting the phone sex hotline, which, you know, in some ways tread on the rights of the phone line operator to host or refrain from hosting whatever content it wanted—you know, not take that on as a customer. But it had to… the court had to leave it open for the phone operator to disconnect the hotline in the future if they didn’t want to carry that kind of content.
And so given there, in this kind of binary case where the hotline is either there—you can call the number—or not, it’s very easy to identify. It was hard to offer a lasting or permanent remedy without stepping on the rights of the intermediary. And when we take that to the online platform space, where you’re not just talking about binary connection versus disconnection, but there are a whole host of steps platforms can take in the middle—algorithmically amplifying or refraining from amplifying, showing your content in search or hiding it in search—it can be, one, really hard to identify when jawboning has actually happened or affected a given platform decision. That’s why things like the Twitter Files or this Missouri v. Louisiana lawsuit are so important. But it’s also even harder to offer some sort of fixed permanent remedy. You can’t guarantee someone a certain amount of traffic going forward forever on YouTube after it’s been found that the government bullied YouTube to suppress their videos in the first place.
Bob Zadek: Now, what makes this subject of jawboning so pernicious, and why I asked Will to share his wisdom with us on the show, is that it is clearly government overreach, but there’s no smoking gun. Government will say with feigned innocence, “We have simply expressed our opinion.” And it’s like trying to prove theft of service or legislative bribery. How do you show the exact quid pro quo? The government will say, “We have an opinion too, and we are sharing with Twitter our opinion.”
So what makes this so scary, and what makes it worthy of a discussion such as the one I’m having with Will, is that it’s very difficult to have a fact for, let’s say, the courts or even the legislature to draft and to put into either an opinion or a statute exactly what you want the government to stop doing. The government has found a very powerful tool that really… even though Will and I and so many others find this profoundly offensive… well, I don’t think you say… having presented the problem, you in your piece, you didn’t say, “And to save everybody the trouble, Will, I have drafted legislation. I’ve done the heavy lifting here, and I’ll write about something else.” I didn’t see you doing that in your piece.
So do you have a cure? You have sounded the clarion call: “Hey America, this is what’s going on.” And then you got everybody riled up. So, Will, any suggestions?
Will Duffield: There are a few. Nothing’s foolproof.
Solutions and the Speech and Debate Clause [40:57]
Will Duffield: Again, this is a difficult issue to tackle directly through the courts, even though there is a clear First Amendment issue, because most of the punishment there would sort of accrue to the private intermediary, and then they’re being punished for having been bullied, which is never a great scenario.
When it comes to jawboning by members of Congress, it’s very hard to prevent because of a part of the Constitution called the Speech and Debate Clause, which is intended to allow Congress to freely debate any subject, but prevents Congress members from being held liable for their speech, even if that speech constitutes jawboning. So, really, the best solutions are either a congressional rule—because Congress is a club and it can make rules for its members in the same way as it limits nepotism or speaking out of turn; it could limit certain forms of jawboning. Beyond that, the solution is like it always is, I suppose: to vote them out if someone has jawboned, or a member of Congress has jawboned egregiously.
So those are both, again, not terribly fulfilling solutions. But thankfully, outside of the congressional space, which is one area in which jawboning happens, and in some of this executive branch jawboning that has been revealed through the Twitter Files and these lawsuits, there is more that can be done because federal employees are not protected the way members of Congress are. So they can be prohibited from demanding the removal of speech.
Now, this does become constitutionally tricky in some ways because they have speech rights of their own. And in some cases, their conversations with platforms concern speech that is actually unlawful—criminals communicating with one another, foreign influence operations, ISIS, that sort of thing. So it can be hard to wall off that kind of often national security-related communication from domestic jawboning.
But the other and perhaps most fruitful route is merely reporting requirements. If government employees or officials are required to report and identify every time they’ve communicated in private with these platforms, both knowing that you’re going on the record in a way with your request may discourage some of these demands, and it would make it much easier for individuals to sue in cases where jawboning leads to the removal of their speech, because they can more easily identify the actual government official responsible and the identification of their speech that led to its removal. So sunlight there on the administrative jawboning or agency jawboning side may ultimately be the most useful disinfectant. When it comes to Congress, it’s a tougher nut to crack.
Bob Zadek: And jawboning takes so many forms. I have done many shows on Title IX abuse, and Title IX abuse on college campuses defended by organizations such as FIRE. That all started with, Will, the “Dear Colleague” letter, and that was jawboning, Will. That was the Department of Education deciding, without legislation—it was concerned about what it perceived to be a “rape culture” on college campuses, that women were exposed to very bad behavior, and they feared that universities and colleges were sweeping it under the rug, were using due process as a way to deny women their quote, “day in court.”
But they had no power. They had no power. There was no legislation through which they could act. And this was during the Obama administration. So the Department of Education wrote a letter. Well, writing a letter—you don’t go to prison for writing a letter. The letter was addressed “Dear Colleague,” and it was sent by the Department of Education to college presidents and provosts. And it said, “Just to let you know, we think in general, colleges should do a much better job in protecting the rights of women. And we are concerned women are being treated unfairly in violation of Title IX. Sincerely yours, Department of Education.”
And one more fact: the Department of Education exists primarily to disburse money to the states or to the colleges. That’s why they’re there. They’re a big disbursement office. They have the money. So when a university gets a letter, “Dear Colleague, here’s what we think you should be doing,” that’s like “your money or your life.” That is another example of jawboning—of the government expressing its behavioral preference in a benign letter that has the weight of life and death to the recipient.
Will Duffield: Well, this is why the power of the purse is, in a sense, supposed to be reserved to Congress, because the power to disburse money is, you know, tremendous power to have. You’ve seen a lot of—some of the jawboning cases in the past involved government contracts and the ability to disburse money in the defense space. That was how steel companies were jawboned; it was the threat, you know, not just of the cessation of government contracts, but the idea that those contracts which you’d previously gotten would now be awarded to your competitor, advantaging them at your expense if you didn’t play ball.
Pandemic Jawboning and the Public Record [48:22]
Bob Zadek: Now, jawboning became overwhelmingly apparent as a byproduct of the pandemic. That was—we all saw jawboning on steroids. And the reason I want to mention that, and just to have you share some anecdotes, if you will, is that jawboning was kind of—putting aside the Twitter Files, which were later—jawboning was kind of happening, as they say, below the radar. But jawboning is when it became so obvious.
Now, Will, we only have a few minutes until we wind down, but give us anecdotally, if you will, because it is so offensive and so clear how the pandemic brought out the worst in jawboning.
Will Duffield: So, I actually see it—the worst, or this current vogue of jawboning—as starting even earlier in the wake of the 2016 election around concerns about Russian influence or interference, basically Russian speech that Americans were receiving. And then Senator Dianne Feinstein said to these platforms, “You’ve created your services. This is your problem, and if you don’t do something about it, we will.” And that to me opened up this new age of jawboning.
Certainly during COVID, it almost intensified again. There was a new emergency. You know, President Biden claimed that platforms were “killing people” by failing to remove COVID disinformation. So the hyperbolic rhetoric really came out. I think platforms were in a difficult position because beyond the CDC or WHO, what authority do you turn to for answers or definitions in this time of crisis? But you know, every emergency begets new powers. And in order to protect public health, platforms became much more willing to moderate. So it opened the door to a new level of jawboning.
Bob Zadek: My preference is—as I come to the worst five minutes of my life when I have to wind down a conversation with a guest, the worst five minutes of the week for me—but what do you see? Will we be talking about jawboning more or less in upcoming years? Is it just the best we can do is give the public the tools to recognize it when it happens and hope they use the ballot box wisely? Is that, I suppose, the best one can hope for? In which case, I’ll invite our friends to listen to this podcast once a day for the rest of their lives.
Will Duffield: I think it’s a really good start. You know, previously there wasn’t the same public appreciation of this problem or public vocabulary with which to discuss it. And now, thanks to the attention given to these problems recently—the concerns raised through coverage of the Twitter Files and the like—then people can look at communications, either publicly by congressmen or others that have come to light, and say, “That’s jawboning. I know it when I see it. This is wrong. You shouldn’t be bullying and communicating with private actors in this way.” And so I think that’s an important rhetorical tool for every American citizen to have as they engage with their elected officials.
Bob Zadek: This show should be preceded by a public service announcement. We’ve been speaking with Will Duffield, who can be followed on Twitter—perhaps Will can… at Will? Give the audience…
Will Duffield: @WillDuffield. And my paper is called “Jawboning Against Speech: How Government Bullying Shapes the Rules of Social Media,” available at Cato.
Bob Zadek: Will, I know your time is valuable, and I know the time of my audience is equally valuable. I sure appreciate your spending an hour with us today, and hope our listeners found this to be a good use of an hour of their time. And I hope they have found it to be content-rich and worthwhile. Thank you so much, Will, for the hour that went by way too fast. And to my friends out there for letting us have a conversation with them, thank you so much, and so long for now.