President Trump Formally Prohibits Government Jawboning, But Will the Administrative State Comply?

The right to free speech guaranteed by the First Amendment is a fundamental tenet of American democracy. Although some might not be thrilled with the legal implications, digital platforms—as private entities—enjoy First Amendment protection from the government. As the Supreme Court held last term in Moody v. NetChoice, the First Amendment “does not go on leave when social media are involved.” Indeed, noted the Court, “[o]n the spectrum of dangers to free expression, there are few greater than allowing the government to change the speech of private actors in order to achieve its own conception of speech nirvana.” Thus, absent some compelling state interest, the government cannot tell firms how to moderate content on their platforms.

But the Biden administration had little respect for digital platforms’ First Amendment rights.

With the case of Murthy v. Missouri last term, it came to light that during the COVID-19 pandemic, federal officials pressured, or “jawboned,” digital platforms to change their content moderation policies to combat what the Biden administration perceived as the spread of “misinformation.” Such jawboning included, but was not limited to, threatening aggressive antitrust enforcement and White House support for restricting the immunity granted by Section 230 of the Communications Decency Act—all direct attacks on these companies’ bottom lines. Although perhaps the Biden administration’s jawboning of digital platforms was subtle, the government’s actions were still coercive. Thus, contrary to the popular narrative (see, e.g., here, here and here), the record in Murthy revealed that digital platforms neither colluded among themselves nor conspired with the government to censor anybody’s speech. Instead, as the district court observed, “social-media companies cooperated [with the Biden administration] due to coercion, not because of a conspiracy.” (Emphasis supplied.) Nonetheless, given the “vast power” of the administrative state, the digital platforms did not sue the government for violating their First Amendment rights, apparently believing that it just wasn’t worth it to fight City Hall.

President Trump declared on his  first day in office that “enough is enough” and signed an executive order entitled Restoring Freedom of Speech And Ending Federal Censorship. The Executive Order begins by acknowledging that the Biden administration “exert[ed] substantial coercive pressure on third parties, such as social media companies, to moderate, deplatform, or otherwise suppress speech that the Federal Government did not approve.” This acknowledgement of the Biden administration’s jawboning is significant as it directly rejects the popular—yet inaccurate—narrative that digital platforms willingly colluded with the government. The Executive Order then directs that no federal department, agency, entity, officer, employee, or agent may expend any federal taxpayer resources or engage in or facilitate any conduct “that would unconstitutionally abridge the free speech of any American citizen.”

This Executive Order shows tremendous leadership by President Trump. Given the hostility of digital platforms towards President Trump during his first term (indeed, both Meta and Twitter temporarily suspended him from their platforms), it would be reasonable to expect President Trump to seek revenge. Instead, the Executive Order  sends a strong message that President Trump views the tech industry as a partner in his effort to “Make America Great Again.” But although Peggy Noonan of the Wall Street Journal recently reported that Trump seems willing to let bygones be bygones because he believes that “his revenge is going to be success,” she also reported that “some of the people he’s hired aren’t that way so there’s a chance some people may take it upon themselves” to use the vast power of the government to squeeze their perceived political enemies. How the administrative state adheres to letter and spirit of President Trump’s Executive Order will be an interesting bellwether.

For example, will we see the Department of Justice or the Federal Trade Commission try to use the antitrust laws to rein in what some refer to as “Big Tech Censorship”? Such efforts not only would ignore President Trump’s Executive Order, but would also represent an improper expansion of the role of the antitrust laws. The antitrust laws are a statutory regime expressly designed to focus on economic conduct; the antitrust laws are not designed to regulate the speech of private actors. The Sherman Act focuses on “restraint[s] of trade or commerce “and the monopolization of “any part of the trade or commerce”; Clayton Act Section 7 and Section 5 of the FTC Act focus on activity and practices in or affecting commerce. Using the antitrust laws to govern private speech falls outside of a plain reading of the DOJ’s and FTC’s statutory mandate. Efforts to shoehorn the regulation of speech into a regime designed for economic conduct rest on a thin legal reed.

Moreover, if the new goal of antitrust is to mitigate “Big Tech Censorship,” then what is the economic harm to be remedied? As Chilson and Mattox (2020) explain, the “fact that consumers do not get exactly what they say they want from the market with respect to free expression does not mean the market has failed or lacks competition. In fact, few consumers get exactly what they want in any context.” If the government uses antitrust tools to shape online speech to match the views of partisans with political power—untethered to a tangible economic harm—then we could end up with less speech, not more. It is not the job of the antitrust enforcement agencies to judge which digital platforms do or do not have politically acceptable content moderation policies. These content moderation policies are protected speech.

Second, will we see the Federal Communications Commission again attempt to write rules interpreting Section 230 to pressure digital platforms to change their content moderation policies? Section 230 is the legal lifeblood of digital platforms, and absent Section 230, digital platforms like Yelp, Truth Social, Rumble, and X would be open to a tsunami of litigation anytime a user posts something that someone else considers to be “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable,” regardless of “whether or not such material is constitutionally protected.” Even allowing a user to post an unfavorable review of a product or service would, without Section 230, risk litigation for the platforms. Yet the plain text of the statute and recent Supreme Court precedent provide no authority for the FCC to reinterpret Section 230 in this way.

Or third, will we see efforts by FCC officials to coerce “speech compliance” from digital platforms by threatening to make them pay into the FCC’s bloated (and perhaps illegal) Universal Service Fund? Under the Communications Act, universal service is funded by revenues from the provision of interstate telecommunications services. Yet as the Sixth Circuit recently confirmed in its decision to strike down the Biden administration’s net neutrality rules, these digital platforms do not provide a telecommunications service and are thus outside of the FCC’s subject matter jurisdiction.

As Justice Neil Gorsuch wrote for the majority in 303 Creative LLC v. Elenis, the “First Amendment envisions the United States as a rich and complex place where all persons are free to think and speak as they wish, not as the government demands.” This core constitutional principle doesn’t go out the window when antitrust or regulation enters the room, which is why President Trump’s Executive Order prohibiting government jawboning is so significant. Unelected bureaucrats should not make open threats against digital platforms’ bottom lines simply because they disagree with how these platforms choose to exercise their First Amendment rights. Such public threats raise significant due process questions about platforms’ ability to get a fair hearing (echoes of former FTC Chair Lina Khan’s suit against Amazon immediately come to mind) and are no different than the Biden administration’s much-criticized jawboning exposed in Murthy.

Given their penchant for sloppy economic analysis (see, e.g., here, here and here) and disregard for due process, the Biden administration’s FTC, DOJ, and FCC left quite a mess for the new Trump Administration to clean up. With his Executive Order, President Trump has sent a clear message to his appointees that they should not waste precious time and resources avenging past grievances but should focus their efforts on righting the ship, staying on mission, and delivering results for the American people.