Jawboning In Plain Sight: The Unconstitutional Censorship Tolerated By The DMCA

For better or worse, jawboning has been a hot topic recently, and it’s unlikely that interest will fade any time soon. Jawboning, in broad strokes, is when the government pressures a third party to make that third party chill the speech of another instead of going after the speech directly. Because the First Amendment says that the government cannot go after speech directly, this approach can at first seem to be the “one easy trick” for the government to try to affect the speech it wants to affect so that it could get away with it constitutionally. But as the Supreme Court reminded earlier this year in NRA v. Vullo, it’s not actually constitutional to try this sort of end-run around the First Amendment. Pressuring an intermediary to have it punish someone else’s speech is no better than trying to punish it directly.

True, not every accusation of “jawboning!” has been legitimate; Internet intermediaries are entitled to make their own decisions about what user expression to facilitate or remove. But when user expression gets removed, and it has not been the result of the volitional choice of the platform, then there are reasons to be concerned about the constitutionality of whatever legal pressure on the intermediary that caused the removal.

Which is why there should be concern about Section 512 of the Digital Millennium Copyright Act and how it operates to force intermediaries to act against users and their speech, whether they would want to or not, and whether the targeted speech is wrongful or not. Because when resisting a takedown notice can cost them their safe harbor protection and potentially expose them to crippling liability, then the choice to acquiesce to the takedown demand is really no choice at all. Instead it’s jawboning: using law to force the third party to act against speech in order to avoid the constitutional protections the speech should have enjoyed.

This dynamic is what this white paper I’ve written with the support of the R Street Institute explores: how the DMCA, as currently written and interpreted, creates a jawboning problem for online speech. It looks at the 512(a) and (c) safe harbors in particular, and the role that takedown notices have in forcing the elimination of user expression and, in an increasing number of cases, users too, all without due process. It notes how the DMCA as currently drafted and interpreted allows and even encourages using the DMCA’s takedown notice system as a tool to censor, such as through the toothlessness way Section 512(f) has been construed and the expansive way the termination provision of 512(i) has been.

Importantly, the paper does not suggest just trashing the DMCA, because statutory protection of Internet intermediaries is critically important. But it suggests that this protection should be more durable and reliable and not come at the expense of the very user speech statutory protection is necessary to foster. And it points out that the true culprit here may be copyright law itself and the extremely expansive doctrines of secondary liability that courts have taken upon themselves to write into the copyright statute. Because the problem with jawboning is that there is legal pressure on an intermediary, and this is undo legal pressure on them that makes intermediaries vulnerable to being coopted to work against the speech they exist, and we all need them to exist, to facilitate.

Of course, the question could fairly be asked, “Why now?” After all, the DMCA has been working its unconstitutional way for a quarter of a century, and we’ve been tolerating it. But tolerating the intolerable does not make it tolerable. Even though the DMCA has been doing its jawboning business all this time does not mean there is no exigent Constitutional problem demanding attention. It just means it’s time to take notice and finally do something about it, especially while there is such attention being given to other ways the government is tempted to affect online speech with similar intermediary pressure.

Furthermore, the DMCA’s jawboning problem has gotten worse over time: while as originally written the law has issues, court cases that have followed, particularly with regard to 512(f) and (i), as well as secondary liability, have exacerbated the statute’s inherent flaws. Meanwhile, the Supreme Court’s decisions in Vullo, Moody, and Murthy have helped provide a contemporary framework for recognizing and responding jawboning, and those decisions only came out this year. This paper now applies them to a problem that has long been brewing.

And, in any case, better late than never, especially as long as First Amendment rights remain threatened.