On October 20, 2023, the Knight Institute will host a closed convening to explore the question of jawboning: informal government efforts to persuade, cajole, or strong-arm private platforms to change their content-moderation policies. Participants in that workshop have written short notes to outline their thinking on this complex topic, which the Knight Institute is publishing in the weeks leading up to the convening. This blog post is part of that series.

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Although jawboning is increasingly accepted as a real problem, there is little agreement as to how it should be prevented. The Cato Institute recently published a policy brief titled Shining a Light on Censorship: How Transparency Can Curtail Government Social Media Censorship and More, by Andrew Grossman and Kristin Shapiro. It explains why disclosure is the best solution to jawboning. Here, I briefly restate their case for disclosure before offering some model language that details the process they’ve sketched out.

Grossman and Shapiro propose requiring government officials to disclose their communications about protected speech or association with social media platforms and other vital intermediaries. The content of government communications to platforms would be reported to, and published by, the Office of Management and Budget, while platforms would be charged with notifying users when their content has been the subject of a government request.

Disclosure requirements have two clear advantages over outright prohibition. First, disclosure informs users that jawboning is happening. Jawboning is in some sense already a legally prohibited violation of social media users’ civil rights. However, without litigation, its effects are invisible to users. Prohibition alone doesn’t help users identify and contest jawboned content-moderation calls, but disclosure would.

Second, disclosure requirements can be implemented without drawing hard lines between acceptable and unacceptable government messages. All relevant communications between government and platforms can be disclosed before ascertaining whether their content exerts inappropriate pressure to censor.

This approach thus sidesteps what has been the biggest stumbling block to efforts to prohibit jawboning—clearly defining prohibited government pressure. The U.S. House of Representative’s Protecting Speech from Government Interference Act is too broad; it would probably prohibit even the expression of private opinions by government officials.

In Missouri v. Biden, a federal district court first issued an injunction that was simultaneously overbroad and contained loopholes seeming to permit unacceptable pressure to censor speech deemed harmful to public safety or election security. It was later pared-down by the Fifth Circuit, which recently held that “‘urging, encouraging, pressuring’ or even ‘inducing’ action does not violate the Constitution unless and until such conduct crosses the line into coercion or significant encouragement.”

There probably isn’t a generalizable Goldilocks zone here. Some cases may be clear-cut but distinguishing “pressure” from “significant encouragement” is a difficult, perhaps subjective, call. Whether or not a request is understood as coercive may turn on context absent from a government request.

The value of disclosure is clear. But what might a disclosure requirement actually look like? How should government communications with platforms be published? In what format, and at what intervals? How should truly sensitive messages be redacted? Most importantly, how can disclosure be achieved without violating the privacy of speakers?

The draft language below, inspired by the Grossman and Shapiro policy brief, offers answers to these questions. While there might be other ways to achieve disclosure, this approach, titled The Social-Media Censorship Transparency Act, offers a minimally burdensome process for ensuring the prompt disclosure of government communications with platforms and notifying affected users.

A BILL

To provide transparency of government actions to suppress speech and association.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

Section 1. Short Title.

This Act may be cited as the “The Social-Media Censorship Transparency Act of 2023.”

Sec. 2. Definitions.

In this Act:

(1) DIRECTOR.—The term “Director” means the Director of the Office of Management and Budget;

(2) EMPLOYEE.—The term “employee” has the meaning given it by section 7322 of title 5;

(3) PERSON.—The term “person” means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101(a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, a corporation which is incorporated in the United States, or public or private organization located in the United States other than an agency;

(4) PROTECTED ASSOCIATION.—The term “protected association” means the joining, assembling, and residing with others that is protected under the First Amendment to the Constitution;

(5) PROTECTED SPEECH.—The term “protected speech” means speech that is protected under the First Amendment to the Constitution;

(6) REQUEST.—The term “request” means any order, demand, proposal, suggestion, or encouragement to consider or take an action; and

(7) SERVICE PROVIDER.—The term “service provider” refers to any person (as defined in section 1 of title 1) that provides products or services, whether or not for remuneration by the parties to whom it provides products or services.

Sec. 3. Employee Reporting Requirement.

(a) Employee Reporting Requirement.—An employee who uses his official authority or influence to make a request, based in whole or in part on protected association or protected speech, to a service provider to limit or terminate its provision of services to any person, whether temporarily or permanently, shall report, or cause to be reported, to the Director—

(1) the employee’s name, agency, and position;

(2) the date of the request;

(3) any identities by which any such person is known to the employee, including the name or number of any account used or maintained by the service provider;

(4) the action that is the subject of the request;

(5) the protected association or protected speech that is a basis of the request; and

(6) if the request involves one or more of the matters enumerated in section 552(b) and (c) of title 5, the portions of the report that the employee contends would be exempt from disclosure under that provision and the basis for that contention.

(b) Third-Party Requests.—An employee who requests any party to make a request that would, if that party were an employee, be reportable under subjection (a) shall report such request as if it had been made by such employee.

(c) Reporting Period.—A report required under this section shall be made no later than the end of the business day following the day on which the request was made.

(d) Penalties.—An employee who fails to make a report required under this section, or intentionally or willfully makes an incomplete or inaccurate report, shall be subject to—

(1) disciplinary action consisting of removal, reduction in grade, debarment from federal employment for a period not to exceed 5 years, suspension, or reprimand;

(2) an assessment of a civil penalty not to exceed $10,000; or

(3) any combination of the penalties described in paragraph (1) or (2).

Sec. 4. Collection and Publication of Reports; Notification; Disclosure.

(a) Collection and Publication of Reports.—The Director shall—

(1) collect any reports made pursuant to section 3 and assign each a unique tracking number;

(2) publish on the internet the tracking number for and contents of each report, but for the identity of any person who is the subject of the report, no later than the end of the business day following the business day on which the report was received; and

(3) for any report that the Director determines would be exempt from disclosure, in whole or in part, under section 552(b) and (c) of title 5, publish any reasonably segregable portion of the report’s contents after deletion of the portions which would be exempt and indicate the category of information deleted and the exemption under which the deletion is made, unless including that indication would harm an interest protected by the exemption under which the deletion is made.

(b) Notification to Service Provider.—Upon publication of a report, the Director shall notify the service provider that received the request of—(1) the publication of the report, including how it may be accessed on the internet, (2) the tracking number for the report, and (3) the identity of any person who is the subject of the request identified in the report, provided that such identity shall be limited to the name or number of any account maintained by the service provider if the request that is the subject of the report identified the person only by reference to such name or number or did not identify the person.

(c) Disclosure of Report.—Upon receipt of a demand for a report identified by tracking number made by a person who is the subject of the request identified in the report, the Director shall disclose such report to such person, except any portions of such report that the Director determines would be exempt from disclosure under the Office of Management and Budget’s regulations implementing the exemptions enumerated in section 552a(k) of title 5, in which case the Director shall indicate the category of information deleted and the exemption under which the deletion is made, unless including that indication would harm an interest protected by the exemption under which the deletion is made. Failure to respond to a demand within one week shall be treated as a constructive denial of the demand for purposes of subsection (d).

(d) Civil Remedy.

(1) Any person whose demand for a report pursuant to subsection (c) is denied, or is granted subject to deletion of information, may bring a civil action against the Director, and the district courts of the United States shall have jurisdiction.

(2) In any suit brought under this subsection, the court may enjoin the Director from withholding the report, or any portion thereof, and order the production to the complainant of the report or any portion thereof. In such a case the court shall determine the matter de novo and may examine the contents of the report in camera to determine whether the complainant is entitled to the report and whether the report or any portion thereof may be withheld under any of the exemptions set forth in section 552a(k) of title 5, and the burden is on the Director to sustain his action.

(3) The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this paragraph in which the complainant has substantially prevailed.

(e) Interim Regulations.—Not later than 90 days after the date of enactment of this Act, the Director shall issue temporary regulations for the collection, publication, and disclosure of reports made pursuant to this Act.

(f) Final Regulations.—Not later than two years after the date of enactment of this Act, the Director shall, after notice and opportunity for public comment, prescribe final regulations for the collection, publication, and disclosure of reports made pursuant to this Act.

Sec. 5. Service Provider Notification Requirement.

(a) Notification Requirement.—Any service provider that receives a notification pursuant to section 4(b) shall promptly notify any person who is the subject of the request identified in the report of—(1) the publication of the report, including how it may be accessed on the internet, (2) the tracking number for the report, and (3) that such person may obtain the report from the Office of Management and Budget.

(b) Civil Remedy.

(1) Any person who is the subject of a report made pursuant to this Act and has not received notification from the service provider identified in the report within 30 days of the Director’s notification to the service provider pursuant to section 4(b), may bring a civil action against the service provider, and the district courts of the United States shall have jurisdiction.

(2) The service provider’s good-faith effort to provide the notification required by subsection (a) within one week of the Director’s notification to the service provider pursuant to section 4(b) shall be an absolute defense to liability under this subsection. For purposes of this subsection, a good-faith effort shall include attempted notification by any means that the service provider ordinarily employs to communicate with its customers, users, or subscribers.

(3) The service provider’s certification, made under penalty of perjury, that it cannot provide the notification required by subsection (a) because it lacks information necessary to contact a notification recipient shall be an absolute defense to liability under this subsection.

(4) If the court finds that the service provider’s failure to make the notification required by subsection (a) was negligent, intentional, or willful, the court shall award the complainant (A) $10,000 and (B) the costs of the action together with reasonable attorney fees as determined by the court.

Sec. 6. Effective Date.

The reporting, notification, and publication requirements of this Act shall apply to requests made more than 120 days after the date of enactment of this Act.