This prepared statement was delivered before the U.S. Senate Committee on Commerce, Science, and Transportation on Oct. 29, 2025.
Chairman Cruz, Ranking Member Cantwell, and honorable members of the Committee,
Good morning, and thank you for the opportunity to testify today. My name is Will Creeley, and I am the legal director of FIRE — the Foundation for Individual Rights and Expression, a nonpartisan nonprofit dedicated to defending the rights of all Americans to free speech and free thought, the essential qualities of liberty.
I’ve spent nearly 20 years defending the First Amendment rights of speakers from every point on the ideological spectrum. At FIRE, we have one rule: If speech is protected, we’ll defend it.
Typically, the censorship we fight is straightforward: The government punishes a speaker for saying things the government doesn’t like. That’s a classic First Amendment violation, a fastball down the middle. Unfortunately, that kind of textbook censorship isn’t the only way government actors silence disfavored or dissenting speech.
Far too often, government officials from both sides of the partisan divide engage in “jawboning” — that is, they abuse the actual or perceived power of their office to threaten, bully, or coerce others into censoring speech. This indirect censorship violates the First Amendment just as surely as direct suppression.
What is jawboning? And does it violate the First Amendment?
Indirect government censorship is still government censorship — and it must be stopped.
This isn’t new law. The First Amendment’s prohibition against coerced censorship dates back decades, to the Supreme Court’s 1963 ruling in Bantam Books v. Sullivan. In that case, the Court confronted a Rhode Island state commission that sent threatening letters, “phrased virtually as orders,” to booksellers distributing “objectionable” titles — with follow-up visits from police, to ensure the message had been received.
The Court held the commission’s “operation was in fact a scheme of state censorship effectuated by extra-legal sanctions; they acted as an agency not to advise but to suppress.” And in the decades since, courts have consistently heeded Bantam Books’ call to “look through forms to the substance” of censorship, and to remain vigilant against both formal and informal schemes to silence speech.
But government officials regularly abuse their power to silence others, so the lesson of Bantam Books bears repeating. And in deciding National Rifle Association of America v. Vullo last year, the Supreme Court unanimously and emphatically reaffirmed it.
In Vullo, New York State officials punished the NRA for its views on gun rights by threatening regulatory enforcement against insurance companies that did business with the group and offering leniency to those who stopped. New York’s backdoor censorship was successful — and unlawful.
This regulatory carrot-and-stick approach was designed to chill speech, and the Court reiterated that “a government official cannot do indirectly what she is barred from doing directly: A government official cannot coerce a private party to punish or suppress disfavored speech on her behalf.”
A government official cannot do indirectly what she is barred from doing directly.
To be sure, the government may speak for itself, and the public has an interest in hearing from it. But it may not wield that power to censor. As Judge Richard Posner put it: The government is “entitled to what it wants to say — but only within limits.” Under no circumstances may our public servants “employ threats to squelch the free speech of private citizens.”
So the law is clear: Government actors cannot silence a speaker by threatening “we can do this the easy way or we can do this the hard way,” as the chairman of the Federal Communications Commission did last month. Nevertheless, recent examples of jawboning abound: against private broadcasters, private universities, private social media platforms, and more. The First Amendment does not abide mob tactics.
Despite the clarity of the law, fighting back against jawboning is difficult. Targeted speakers can’t sue federal officials for monetary damages for First Amendment violations, removing a powerful deterrent. And as a practical matter, informal censorship is often invisible to those silenced.
That’s particularly true in the context of social media platforms, as demonstrated by another recent Supreme Court case, Murthy v. Missouri.
Jawboning betrays our national commitment to freedom of expression.
Murthy involved coercive demands by Biden administration officials to social media platforms about posts related to Covid-19, vaccines, elections, and other subjects, resulting in the suppression of speech the administration opposed. But the Court held the plaintiffs lacked standing to sue, because the causal link between their deleted posts and the administration’s pressure wasn’t sufficiently clear.
Murthy illustrates a severe information disparity: Users whose speech is suppressed have no way to know if government actors put their thumb on the scale. Only the government and the platforms have that knowledge, and usually neither want to share it.
That’s why FIRE authored model legislation that would require the government to disclose communications between federal agencies and social media companies regarding content published on its platform, with limited exceptions. But transparency is not enough. Federal officials must be meaningfully deterred from jawboning, and held accountable when they do.
Jawboning betrays our national commitment to freedom of expression. Congress should take action to stop it.
Thank you for your time. I welcome your questions.
