In 2022, the authors of the so-called Twitter Files argued that statements from Biden administration officials to social media companies posed an “existential threat to free speech.” The act of government officials using threats or coercion to compel private actors to take actions the government cannot take on its own is generally referred to as jawboning. Government officials are, generally, allowed to try to persuade private actors to act in a particular manner (i.e., “using the bully pulpit”), but they cannot cross over into coercive behavior that threatens retaliation for failing to abide by the official’s wishes.
The Supreme Court ruled in June that there was no evidence to support the allegations that government officials had made threats amounting to “open and explicit censorship programs.” Indeed, the majority decision in that case, written by Justice Amy Coney Barrett, highlighted that the companies appeared to make their decisions independent of any messaging from the government and felt free to push back on anything flagged by the government that did not violate their rules. As such, the Supreme Court saw no evidence of coercion that crossed the line into unconstitutional jawboning.
The Supreme Court saw no evidence of coercion that crossed the line into unconstitutional jawboning.
Even so, it has remained accepted wisdom among supporters of that case that any statement by a public official aimed at influencing a media entity in how it presents content is an obvious First Amendment violation. Indeed, one of the parties in the case recently misleadingly declared the upshot of the Supreme Court’s ruling to be that “bureaucrats decide what … can be said in the public square.”
Many of those same Twitter Files free speech warriors are fans of incoming Federal Communications Commission Commissioner Brendan Carr, whom President-elect Donald Trump himself has called a “warrior for free speech.” Carr has issued a number of letters recently that could reasonably be described as jawboning. First, he addressed the CEOs of Alphabet, Meta, Apple and Microsoft, accusing their companies of participating in a “censorship cartel.” (And, yes, Carr cited the Twitter Files as evidence.)
More recently, Carr sent a letter to Disney CEO Robert Iger citing the fact that Americans have low levels of trust in today’s mass media, while noting that “Americans largely hold positive views of their local media outlets.” He highlights Disney’s controversial recent decision to settle a defamation lawsuit brought by Trump as evidence that ABC has “contributed to this erosion in public trust.” He further writes that since ABC is “renegotiating the terms of many of its affiliate agreements” and those agreements include broadcasting ABC’s national programs, he is watching closely to see how ABC conducts itself. He adds that the “approach ABC is apparently taking in these negotiations concerns me.”
Furthermore, as he notes, “the FCC clearly has an interest in and the authority … to ensure that local broadcast TV stations retain the economic and operational independence necessary to meet their public interest obligations.” And he warns that if something is “jeopardizing … those objectives, then the FCC will be compelled to act.”
In November, Carr posted: “Broadcast licenses are not sacred cows. These media companies are required by law to operate in the public interest. If they don’t, they are going to be held accountable, as the Communications Act requires.”
Disney owns ABC, but nearly all ABC affiliates are owned by other entities, which contract with ABC for content through retransmission agreements. Among the largest of these affiliates is Sinclair Broadcasting, run by David Smith, who once told Trump that his stations were “here to deliver your message.” The silence from self-proclaimed free speech defenders in response to Carr’s letter exposes a glaring double standard. If you assume that much more opaque statements from U.S. government officials to social media companies were “an existential threat to free speech,” it’s not difficult to argue that Carr’s statements are actually a much more direct threat. Indeed, they appear to go far beyond anything that was uncovered in the cases against the Biden administration, which, as the Supreme Court noted in its majority decision, never seemed to rise to any threat, implied or otherwise. However, in the same corners that spent the last couple of years braying about the cases against the Biden administration, there is now a lack of concern about Carr’s thinly veiled threats to Disney over its programming and dealmaking. Is it that the “existential threat to free speech” exists only when the Democrats are in charge and it’s totally fine when a Republican official offers a more direct threat? The silence from many self-proclaimed free speech defenders in response to Carr’s letter exposes a glaring double standard. If they are to maintain any credibility, they ought to condemn government threats to free speech and editorial independence regardless of the political affiliation of the official making the threat. Carr’s letter is a test of their principles — one they are currently failing.
Mike Masnick
Mike Masnick is the founder and editor of Techdirt.com and the CEO of the Copia Institute. 
