When attorney Robert Corn-Revere vents his views about issues affecting the First Amendment’s guarantees of free speech and press, it’s wise to attend. Currently chief counsel for the Foundation for Individual Rights and Expression and a former partner at two leading law firms, Corn-Revere served as chief counsel for the late James Quello, a renowned commissioner at the Federal Communications Commission (FCC) from 1974 to 1997. Corn-Revere also knows a thing or two about the cultural, psychological, and political forces that foment and foster censorship, having penned The Mind of the Censor and the Eye of the Beholder for Cambridge University Press.
Last month, Corn-Revere published an open letter to incoming FCC Chair Brendan Carr in the Columbia Journalism Review advising the Republican, who Donald Trump elevated to chair, to “be modest in [his] assertion of power,” especially as it affects the First Amendment. Some of Corn-Revere’s sentiments relate to concerns I expressed on February 6 and February 11 about Trump’s lawsuit against CBS over 60 Minutes’ Kamala Harris interview and how Trump’s case intersects with First Amendment press freedom, the FCC’s news distortion rule, and the Commission’s statutory authority to require over-the-air broadcasters to serve the public interest. The veteran First Amendment defense attorney, however, makes several additional points that merit discussion. My take on one––jawboning––is described below.
Jawboning Flip Flop? The case of Murthy v. Missouri that the US Supreme Court decided in June 2024 involved the concept of jawboning––verbal arm-twisting by government officials of speech intermediaries to get them to remove or deprioritize third-party content the government dislikes. It’s a critical constitutional concept I’ve addressed several times for AEI.
In Murthy, the allegations centered on jawboning by the Biden administration to get popular platforms such as Facebook, YouTube, and X to jettison conservative-leaning content. As President Trump asserted in his January 20 executive order called “Restoring Freedom of Speech and Ending Federal Censorship,” Biden officials “trampled free speech rights by censoring Americans’ speech on online platforms, often by exerting 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.”
Corn-Revere’s open letter to Carr notes that on November 13, 2024––when it seemed almost certain Carr would be promoted to chairman when Trump took office––Carr sent a saber-rattling letter to the heads of Alphabet, Apple, Meta, and Microsoft. In it, he ominously deemed them part of a “censorship cartel.” While artfully avoiding an explicit coercive threat of negative consequences if the companies didn’t “help [to] ensure that a true diversity of viewpoints can flourish in this country as envisioned by the First Amendment,” Carr threw Section 230 into the mix, intimating they might not be acting in good faith when moderating content. Triggering the negative baggage that’s freighted when an industry is branded “Big,” Carr wrote that:
As you know, Big Tech’s prized liability shield, Section 230, is codified in the Communications Act, which the FCC administers. As relevant here, Section 230 only confers benefits on Big Tech companies when they operate, in the words of the statute, “in good faith.”
Carr demanded from them detailed information about their relationship with a company called NewsGuard that rates the credibility of news sources and that Carr claimed “operates as part of the broader censorship cartel.” Critically, Carr suggested the tech companies weren’t acting in “good faith” by using NewsGuard and thus hinted they could lose Section 230 immunity if they continued doing so: “NewsGuard’s own track record raises questions about whether relying on the organization’s products would constitute ‘good faith’ actions within the meaning of Section 230.”
Corn-Revere explains to Carr that “[a]lthough your demands were framed as a kind of appeal to free speech, it is impossible to miss the irony that a high government official was demanding that private business make changes in their speech policies.” Corn-Revere points out that Alphabet, Apple, Meta, and Microsoft “are not under the FCC’s jurisdiction” and that “the FCC has zero authority” over NewsGuard. Mission creep by the FCC––expanding jurisdiction over them––would likely be shot down under the Supreme Court’s 2024 ruling in Loper Bright Enterprises v. Raimondo. Corn-Revere adds that “[l]everaging state authority to prevent private ‘censorship’ is not even a valid governmental purpose, and efforts to use such power would fail under any level of constitutional scrutiny.” He concludes that such jawboning via “threatening letters”––courts dub it “regulation by raised eyebrow” when the FCC does it––may submerge Carr in “constitutional hot water.” That’s something Carr probably should consider although, as Corn-Revere wryly writes, he may not as long as “the political winds [are at his] back” and “the president is happy with the public positions [he’s] been taking.”
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