Towards a regulatory threats comparative research agenda

It was our pleasure to host this online Symposium on regulatory threats. As mentioned in the opening post, we have been working on the issue for quite some time, under the premise that threats of regulation are an important mechanism of Internet governance. We met a few challenges when we set out to empirically measure this mechanism in action. This is because the issue is complicated, as Daphne Keller clearly put it in her post. We have seen this complexity in the Biden v. Missouri saga with the US Supreme Court decision in Murthy v. Biden. There, the Court refused to find that a pattern of interactions between government and corporate officials, where the former demanded action from the latter, was an unconstitutional form of pressure (or jawboning) under the standard of Bantam Books, the 1963 leading case on the matter. In NRA v. Vullo, and facing a much more clear and straightforward record, the Supreme Court decided—in a 9-0 decision—to set a limit, based on Bantam.

As Michael Karanicolas noted in his post, the​​ difficulty of drawing useful lines for tech regulation is certainly part of American case law.

“While platforms have the right to moderate content to a stronger standard should they choose to, the government’s background role in orchestrating platform speech restrictions muddies the legal delineation between platform and government enforcement. The informal nature of the interactions makes it difficult to attach any proper due process. Governments generally frame enforcement decisions as purely voluntary on the part of the platforms, even where governments are specifically requesting the removal of an account or post, and despite the clearly coercive nature of the dynamic. Causality between a government request and a platform enforcement decision is difficult to establish, which means that, in practical terms, there is no opportunity for judicial review.”

This is the nature of the problem. The possibility of public officials asking informally and indirectly what they could not ask formally and directly is what makes the mechanism so troubling from a freedom of expression perspective. It seems to be a get-out-of-jail card likely to be abused, that follows predictable incentives by public officials, and that has no adequate remedy, as the American case law shows.

Putting this mechanism in a broader framework of informal governance, Robert Gorwa explained—in his post, and his recent book—that even though these dynamics are difficult to observe, at the end of the day, companies “make the call internally whether or not to go along with it. In many countries, I’d suspect that platforms would rather be jawboned than bound by expensive and onerous new regulatory frameworks”. We agree, and that is partially what makes the issue so challenging, for the voluntary decision by corporations is essentially impossible to distinguish from the decision made under pressure. This emerged clearly in a 1976 jawboning decision by a District Court in California, in the case Writers Guild of America, West, Inc. v. FCC. There, what was under scrutiny was the “voluntary” adoption of the Family Hour policy) by major networks in the United States. Through discovery, all the informal contacts between public officials from the FCC and network executives came to light. The government had asked companies for the voluntary adoption of the policy, implicitly threatening them with Congressional inquiries and potential regulations to come if they failed to act. However, when asked if they felt pressured, the network executives stated that they had not. The district judge found otherwise, for the evidence produced during discovery showed “that the adoption of the family viewing policy was caused substantially by government pressure”. While the case did not become a significant precedent (the 9th Circuit vacated the decision years later) the decision is nevertheless important because it highlights that the incentives of both sides were the same: to keep the informal mechanism going, the communications channels open, and the opportunities for mutual influence open.

One of the main reasons we organized the symposium was to address this question: why only in the United States did regulatory threats come under constitutional scrutiny? In our literature review, the mechanism of jawboning has been found to be present in all sorts of industries and settings. But only in the United States did it come under judicial scrutiny. Paddy Leerssen gave us what we believe is an extremely plausible answer to this question in his contribution. He argues that in Europe, protections for free speech are not as restrictive as the First Amendment, “The range of potentially unlawful speech is far broader, and keeps expanding—for better and for worse”. Hence, he argued that what in the United States is a regulatory threat in Europe is an actual threat of enforcing some legislation, for local initiatives “have always been backed by a more credible and explicit threat of binding regulation—first at the national level in initiatives such as the NetzDG, and finally in the DSA framework”. The DSA clearly offers opportunities for what Leerssen calls lawboning—for it substantially increases the point of contacts between public and corporate officials, as Joan Barata argues in his contribution. Leerssen argument raises important questions from a Latin American perspective, for even though most Latin American countries do not have freedom of expression protections that go as far as the First Amendment, it is a region where constitutional and apex courts have consistently found freedom of expression to be a preferred right, that often has the upper hand in balancing exercises against other rights claims or state interests invoked to restrict it. This may explain the relative lack of speech-related legislation in the region (with the partial exception of Brazil).

As Paulina Gutiérrez argues, the informality of the mechanism and its lack of openness to civil society and academia should put jawboning outside the scope of Internet governance mechanisms, a normative point to consider seriously. At the same time, however, the prevalence of the mechanism to effectively shape what the Internet is suggests a rather urgent research agenda, that should—first and foremost—combat the mechanisim’s invisibility. As Gorwa suggests in his contribution, it is important to understand how different actors benefit from these dynamics and how their needs are served. Besides understanding, it seems also urgent to imagine ways in which transparency and accountability can be increased. Perhaps the implementation phase of the DSA will offer an opportunity to see how companies react to a more structured and traditional regulatory field, even within the co-regulatory approach the DSA embraces. And, especially in jurisdictions where the self-regulatory paradigm remains untouched, legislation aimed at increasing the transparency of public and corporate officers’ communications seems like a step in the right direction.