With the rare treat of dropping two new pieces in a week, I’m happy to see the final version of Jawbreaking and Counterboning now live at the Connecticut Law Review (with huge thanks to its awesome editors for a generative symposium and all their hard work to bring it quickly across the finish line). This piece is a deep dive on the early days of FCC Chairman Brendan Carr’s now-infamous “we can do this the easy way or the hard way” jawboning campaign against Disney and ABC around late-night host Jimmy Kimmel.
Using the Carr-Kimmel saga as a case study, the piece coins the term jawbreaking to denote corporate resistance to jawboning. In simple terms, jawbreaking is the willingness of a private speech platform, such as a broadcast station (or a social media platform), to refuse unlawful government demands to carry or remove a speaker or speech. One of the core challenges of jawboning law is corporate entities caving—or in jawboning parlance, knuckling under—to unlawful demands. Because the First Amendment is not self-executing, the government can get away with even a flagrantly unlawful demand if a platform knuckles under instead of jawbreaking.
This frames a weird question: how can the law incentivize jawbreaking where the mere availability of the First Amendment isn’t enough? To imagine a mode of systematically pressuring platforms to jawbreak, the piece coins (though doesn’t fully commit to) the concept of counterboning. Counterboning entails an out-of-power political opposition meeting an unlawful threat by a current government official with a threat of countervailing future consequences—such as the loss of a broadcast license—if the target knuckles under to the official’s demands in the present. The conceit is to even out the near-term political risks of retaliation for jawbreaking with the future legal risks of punishment for knuckling under, ideally spurring the target to choose resistance. The piece wrestles with the conceptual, legal, and ethical tensions of an exercise that starts to verge into making the First Amendment mandatory—and if it goes too far, looping all the way around to unlawful jawboning.
I don’t want to rehash too much of what is hopefully a pretty short and accessible, but one piece of supplemental director’s commentary is in order. Counterboning requires playing on the political end of the continuum from law to politics more than my doctrine-centric approach to legal scholarship usually takes. A wise colleague kindly nudged me to consider why the piece didn’t grapple more deeply with the doctrinal strokes of counterboning. Is it really any more lawful, for example, for a political opposition to threaten future consequences to a broadcaster’s license for knuckling under than it is for a current official to baselessly threaten the license in the present? Do the FCC’s rules really allow counterbones to be enforced in the future? What about the Communications Act? The First Amendment?
These are hard, important questions that both my typical scholarly lens and my days of practice as a telecom clinician tempted me to spend another ten thousand words on. As an ethical and moral matter, it’s not reasonable for an opponent of unlawful jawboning to merely unlawfully jawbone in return. There must be a legally defensible distinction between a good-faith, lawful counterbone and a bad-faith, unlawful jawbone—to maintain a commitment to the rule of law, among other things.
While the piece offers what I’m satisfied is at least a reasonable doctrinal proof-of-concept for lawfully counterboning unlawful jawbones against broadcasters, I chose not to go too deeply down the doctrinal rabbithole for at least a couple of reasons. Narrowly, over-perseverating on the doctrinal strokes of enforcing a counterbone risks obscuring the point of the exercise, which is not to punish behavior that is certain to occur. The goal is changing behavior in the present when no power to enforce even exists—i.e., to spur broadcasters to jawbreak in the first instance such that formally enforcing the duty to jawbreaker never becomes necessary. That is not to suggest, of course, that enforcement of a counterbone will never arise—and failure to adequately attend to the doctrinal framework risks consequences down the road that the piece unpacks in detail. But counterboning, at least in the first order, is a political exercise that need only be sufficiently plausible to shift incentives. It’s not a formal application of a legal directive that must reliably survive judicial scrutiny with a doctrinally airtight approach.
This leads to a second reason for avoiding too much doctrinal analysis: a broader risk of losing the political forest of a sustained, unlawful jawboning campaign for the (rapidly growing) doctrinal trees. Even in the short time since I finalized the piece, the Carr-Kimmel saga has dramatically escalated into a formal licensing renewal fracas between the FCC and Disney over ABC’s owned-and-operated stations. In turn, that saga is only a small part of what John Blevins has described as a broader campaign of “retaliation by raised eyebrow” against the broadcast industry. And the broadcast saga is only one of many related sagas across American society, as Mary-Rose Papandrea’s piece for the symposium explores. As the aperture widens, the doctrinal breadth and complexity grows fractally.
Yet studying the Kimmel episode made clear to me that more doctrine doesn’t necessarily help make any more sense of a never-ending stream of flagrantly unlawful behavior. And it’s not just that looking through a doctrinal lens is hopelessly time-consuming (though it certainly can be that). Cashing out the endless minutia of the doctrinal dustup du jour—e.g., this week, the FCC’s apparently mistaken acceleration of the expiry dates of Disney’s licenses—risks drawing attention to the paper-thin legal veneer and away from the obviously (and often overtly) political campaign underneath. In the historically rich field of telecom law, doctrinal debates over the FCC’s evolving applications of nebulous provisions of the Communication Act (such as the “public interest” standard for broadcasters) and their complex intersections with administrative law and the First Amendment are legion. But at the end of the day, the shape of the problem here felt quite different—and called for a different approach.