The Free Speech Boomerang Effect in the Era of Whataboutism Wars

The Problem with Conan the Barbarian-Style Communications Policy

Throughout my 34-year career as an information technology policy analyst, I have made various principled and practical arguments against government efforts to censor or curb speech. Lately, however, I have come to realize that the practical case isn’t really working as well anymore and I’ve begun wondering if it is even worth making.

Put simply, in an era of revenge politics and rampant “whataboutism,” many politicians don’t care that the censorial ideas that they threaten opponents with today could come back to haunt them in the future. They’re willing to roll the dice and let the chips fall where they may later.

I’ve been seeking to better understand why this has happened and how to slow its escalation before greater damage is done to our speech freedoms in this country. We need politicians and pundits to reconsider the dangers of retaliatory speech brinksmanship and look to achieve some sort of rough détente to end this sort of mutually assured destruction.

Alas, that will not be easy.

The Boomerang Effect

The principled case against censorship is straightforward and remains just as powerful as ever: People have an inalienable human right to speak freely, express themselves, generate and gather information, and learn about the world as they see fit. In America, we are blessed to enjoy the protections afforded by the First Amendment, which shields these rights from government intrusion.

There are also many practical arguments for protecting free speech, many of which rest on the idea of positive reciprocity: If for no other reason, you should support the right of others to speak, express themselves, and learn because you want to enjoy those same rights yourself. This reciprocal arrangement has the added benefit of growing the stock of knowledge available to humanity, which also benefits you in practical ways.

Free speech advocates regularly make positive reciprocity arguments whenever new information and communications regulations are proposed. One variant of the pragmatic case for rejecting speech controls is based on the danger of what we might think of as “the boomerang effect.” The argument goes something like this: You should avoid regulating speech using the approach you are currently considering because the same policies you favor today might be used against you in the future when your rivals return to power. We might crudely think of this as the “It Will Come Back to Bite You in the Ass” principle, but I will refer to it here as the boomerang effect. Ira Glasser once used a good metaphor to explain the boomerang danger. He argued that “speech restrictions are like poison gas: They seem like a good weapon when you have the gas and a detested enemy is in your sights. But it all depends on who has the gas, and how the political winds blow.”

Unfortunately, the boomerang effect argument has become a complete loser today. This practical objection to speech regulation remains quite valid; it’s just that almost nobody gives a damn about it anymore. Partisans are all too happy to pull out the poison gas any chance they get to go after their opponents, caring little about the collateral damage it creates or which way the political winds might blow next.

Conan’s Communications Policy

The primary reason the boomerang argument no longer has much currency is because there has been a profound change in the character of our politics.

Situational ethics has long been part of American politics, but one cannot help but feel that our modern era is absolutely consumed by “grievance politics“ and a thirst for revenge by any means necessary. The zeitgeist of our age was perhaps most concisely articulated by Conan the Barbarian when he said the meaning of a good life was, “To crush your enemies, see them driven before you, and to hear the lamentations of their women.” The politics of resentment and revenge are particularly evident in the field of information policy today, where plenty of politicians and others have a beef with both traditional media outlets and newer “Big Tech” firms and platforms. They want some sort of payback for past sins, whether real or imagined. Partisans are convinced that tech companies, their CEOs, and their platforms are out to get them on behalf of their opponents and, therefore, we gotta make ‘em pay! Alternatively, they are convinced that some opposing party officials previously used the power of the state to cajole media operators to do something stupid, and therefore, that excuses them from doing something equally dumb now. That is “whataboutism” in a nutshell.

In a political culture in which many believe “an eye for an eye” and “fight fire with fire” are a morally justified basis for public policy, the practical argument for positive speech reciprocity has instead given way to claims of negative reciprocity. Each tribe now wants revenge and, consequently, in their minds, two wrongs do make a right as it pertains to speech controls and retaliatory regulatory measures. Everything else—including the potential boomerang effects that might be felt later—is secondary to their thirst for quick payback.

Greg Lukianoff, CEO of the Foundation for Individual Rights and Expression (FIRE), succinctly summed up our dismal current situation last September in a New York Times oped entitled, “Everyone Is a Free-Speech Hypocrite.” Lukianoff noted that:

“Again and again, political actors preach the importance of free speech, only to reach for the censor’s muzzle when it helps their side. If, like me, you defend free speech as a principle rather than invoke it opportunistically, you get distressingly accustomed to seeing the same people take opposite positions on an issue, sometimes within the space of just a few months.”

While whataboutism and negative reciprocity have been problems in our political culture for longer than we free speech defenders might care to admit, as Lukianoff suggests, this demoralizing trend seems to have grown far more prevalent in recent years.

We Told You So

Some of us saw this danger coming. I have spent decades encouraging those on the political Left to reconsider the wisdom of granting the Federal Communications Commission (FCC) broad, undefined powers to regulate “in the public interest.” That well-intentioned phrase appears widely throughout various FCC-related statutes and regulations, and I have long warned that it would come back to bite them in the ass once their political opponents learned how to weaponize it.

And then current FCC Chairman Brendan Carr came along and proved it.

In a now-famous 2019 tweet, Carr asked, “Should the government censor speech it doesn’t like?” Carr answered: “Of course not. The FCC does not have a roving mandate to police speech in the name of the ‘public interest,’” he said. Quite right! “The public interest,” as enforced by the Communications Act of 1934 and the FCC, has always had a troubled history. In 1959, Nobel Prize-winning economist Ronald Coase argued that the phrase “lacks any definite meaning” and that the inconsistencies in agency decisions had made it “impossible for the phrase to acquire a definite meaning in the process of regulation.” That assessment remains true today, which is precisely why Carr was right to argue against “a roving mandate to police speech” under such a vague standard.

Alas, like Isildur standing before the fires of Mount Doom, when the opportunity to destroy the ring of power came, Carr chose the opposite approach. He has used those vague public interest powers to threaten various broadcasters, networks, and TV personalities. Carr argues that late-night talk show hosts are “enforcing a very narrow political ideology” that instead belongs on podcasts. “But if you are going to have a license from the FCC, we expect you to broadly serve the public interest,” he now argued. He keeps broadening his attacks and is now directly threatening licensing revocation, which would be the equivalent of the death sentence for some broadcasters. While he’d almost certainly lose in court if things got that far, Carr is smart enough to realize that and is just playing short term political games to appease his boss and many in his political base by pushing the envelope as far as he can.

Carr’s actions reflect a much broader pattern of free speech abuses by the Trump administration, which Lukianoff and the team at FIRE have meticulously documented. In a recent “Open Letter to FCC Chairman Brendan Carr,” FIRE chief counsel Robert Corn-Revere documents Carr’s particular abuses and his habit of documenting “wins” over the media. Consistent with the Conan motif, Carr is engaged in a game of ultimate conquest to make all his enemies bend the knee, and he is proving to be quite good at it. He has become the king of jawboning, which refers to “the use of official speech to inappropriately compel private action.” Other scholars refer to jawboning as “censorship-by-proxy.” Using jawboning tactics and creating a culture of fear through intimidation and harassment can have a profound effect on speech outcomes and marketplace behavior.

As FIRE’s Will Creeley noted in recent congressional testimony, “[t]he First Amendment does not abide mob tactics.” But can Carr actually get away with what even Republican Sen. Ted Cruz (R- TX) refers to as “mafioso“-style politics? Carr is a long-time communications lawyer and previously served as General Counsel of the FCC. As noted, he is smart enough to avoid more direct actions that could invite serious First Amendment scrutiny and potentially wind up prompting a long overdue constitutional challenge to the infamous Red Lion decision and other archaic court precedents that prop up this charade. By turning jawboning into a fine art, he’s left free speech defenders with fewer ways to challenge his actions.

As an aside, I have to admit that I have had a little fun recently chatting with old intellectual sparring partners on the Left about Carr’s reign of terror and his weaponization of the public interest standard. I am not above saying “I told you so!” when I remind them of my past warnings regarding the need to rein in the FCC’s broad speech policing powers before they got seriously abused. Some of those friends on the Left have been willing to admit to me privately that they did not think things could ever get this bad.

Unfortunately, none of them appear willing to strike at the heart of what’s really wrong with this regime by calling for an end to the FCC’s roving public interest authority or the sunsetting of broadcast spectrum licensing altogether. When I testified recently at a hearing on these issues, for example, there was plenty of huffing and puffing by Democratic lawmakers about Carr and the current FCC, yet not a single one of those lawmakers expressed any interest in considering the far-reaching reforms needed to stop such abuse from happening again in the future.

Perhaps that is because some Democratic lawmakers are just falling back on the current trend of living for another day when they can get their payback. At that hearing and others on these issues, some Democratic lawmakers have implied that such a day of reckoning would be coming once their party returned to power.

The message is distressingly clear: you went full Conan on us today, and we’ll go full Conan on you tomorrow! It’s just negative reciprocity all the way down.

Was It Always This Bad?

It is fair to ask whether all this really is a recent phenomenon or if this is just instead the way things have always worked. After all, the great Nat Hentoff wrote an entire book in 1992 on the theme of Free Speech for Me—But Not for Thee: How the American Left and Right Relentlessly Censor Each Other, which documents plenty of pre-existing hypocrisy of this variety. An earlier 1976 book by Fred W. Friendly, The Good Guys, The Bad Guys and the First Amendment, offered some similar tales of government abuse. More recently, in testimony last September, law professor Eugene Volokh offered some other examples of pre-Internet era jawboning. In a sense, politicians have long played these games and ignored the boomerang problem. Nonetheless, I believe negative reciprocity is a growing and far more serious problem today.

Consider the case study of the so-called “Fairness Doctrine,” the FCC policy that was meant to encourage broadcasters to afford reasonable opportunity for the presentation of conflicting views of subjects of public importance. The first essay I ever wrote on media policy was a short 1993 Heritage Foundation report entitled, “Why The Fairness Doctrine Is Anything But Fair,” which discussed how the Doctrine had been abused politically and was also just very difficult to enforce in practice. In the late 1980s, the FCC finally scrapped the policy because it was generally regarded as a failure, but some congressional lawmakers made an effort to reinstate it, and a few notable conservatives backed the move. People don’t remember this now, but there were actually a handful of conservatives back then who supported the Fairness Doctrine, including conservative activist Phyllis Schlafly and Senator Jesse Helms. (There are even a few conservatives today who still call for its resuscitation.)

Luckily, President Ronald Reagan took the principled path and put a stake in the heart of the Fairness Doctrine when he vetoed the “Fairness in Broadcasting Act of 1987,” a law that would have codified the doctrine. “History has shown that the dangers of an overly timid or biased press cannot be averted through bureaucratic regulation, but only through the freedom and competition that the First Amendment sought to guarantee,” Reagan argued in his veto message.

The handful of conservatives who had previously favored reinstating the Fairness Doctrine largely disappeared by the mid-1990s after Rush Limbaugh and other notable conservative voices gained newfound success on broadcast talk radio. Limbaugh and many others railed against subsequent efforts to reimpose the policy, calling one such effort the “Hush Rush Bill.” Part of their argument against Fairness Doctrine resuscitation came down to fear of the boomerang effect of speech regulation: If the Doctrine is reinstated, they argued, it will be used against us now and in the future. In 2008, City Journal editor Brian C. Anderson and I wrote a book called A Manifesto for Media Freedom that documented the unified coalition on the Right that stood steadfastly opposed to FCC meddling with speech outcomes.

Things have changed today, however, and many conservatives are singing a very different tune—both about the regulation of analog and digital media. Despite the fact that no one has benefited more from new digital media outlets and options than President Donald Trump and MAGA conservatives, some of them have made a habit of calling for extreme regulatory actions against many new media platforms. This trend accelerated rapidly following the 2019 White House “Social Media Summit,” and then this impulse went into overdrive following Trump’s deplatforming from Twitter in 2021. Since then, many conservatives have been in pure payback mode and tossed out any earlier reservations about using the power of the state to influence or control content on old or new media platforms. It’s anything-goes now, and considerations of the boomeranging ramifications down the road barely register in their minds.

It remains unclear whether they feel this way because they think they will hold power forever, or if they are instead just willing to roll the dice with short-term, self-serving power plays because they don’t care about time frames longer than whatever political payoff sits right before their noses on any given day. If you follow Chairman Carr on X, you will find that each new episode of jawboning and threats against broadcasters or TV personalities gets met with thunderous applause from many in his base. In fact, some of them often respond with quips like “their licenses should’ve been pulled a long time ago,” or “those people belong in jail.”

The sad fact of the matter is that speech-related thuggery is hugely popular among the base. And, yes, you can find plenty of that same appalling behavior on the Left, too. Hey, look at that, I engaged in a bit of “whataboutism” there!

Of course, some of that whataboutism is understandable. As Chair of the Senate Commerce Committee, Senator Cruz has held hearings and conducted investigations looking into government strong-arming tactics against social media companies during the Biden years, and the House Select Subcommittee on the Weaponization of the Federal Government conducted a long investigation and held many hearings on the same concerns. Many on the Left cheered on COVID-era jawboning that prompted these investigations. The abuses were real and even reached the Supreme Court in Murthy v. Missouri in 2024. Without re-litigating all the specifics or outcomes, we can just safely conclude that these tactics just seem to be accelerating without end and on many fronts, and from both parties.

Speaking of Sen. Cruz, he is one of the few elected conservative who has recently come out against Chairman Carr’s escalating jawboning tactics at the FCC. Cruz has sensibly observed that, “if the government gets in the business of saying ‘we don’t like what you, the media, have said, we’re going to ban you from the airwaves’ … that will end up bad for conservatives.” When the roles get reversed, Cruz noted, “[t]he next Democrat FCC—they will silence us,” he said. “They will use this power, and they will use it ruthlessly, and that is dangerous.”

Cruz understands the danger of the boomerang effect. Why can’t other conservatives see it?

We Need a Recommitment to Positive Reciprocity (but I’d Settle for a Little Détente)

Where does this leave us? While boomerang effect warnings may continue to go unheeded, it remains understandable why many free speech advocates will continue to make this practical case against speech controls or jawboning. If nothing else, we can always just once more say, “I told you so!” when we see one party take their opponent’s playbook and use it against them later. Honestly, though, we are probably just wasting our breath issuing such warnings in the hope of getting the Conans on both sides to back down.

In the end, we have to fall back on the principled argument against censorship and tell our opponents: “See you in court.” The problem is that there is so much collateral damage in the short-term. Moreover, a clear path to speedy judicial remedies sometimes does not exist, especially when some major platform owners refuse to defend their rights and take the fight to the government. Many media companies instead look to quickly settle and make the regulatory harassment and bad PR go away as quickly as possible. We’ve seen that a lot in recent years, both for social media platforms and traditional broadcasters, who would rather capitulate than stand on principle and fight the good fight for their free speech rights and the broader rights of the American public.

There are a few targeted legislative reforms that Congress could consider to partially limit the potential for jawboning in both old and new media contexts. My colleague Spence Purnell and I have discussed the need for Congress to address these problems and we will soon be releasing a new essay outlining four simple steps lawmakers could take to discourage jawboning efforts at the FCC and by other government agencies or officials. These include fixes to existing law that allow citizens to pursue remedies to jawboning by government officials. FIRE has proposed some similar reforms to improve transparency and accountability around jawboning efforts. These reforms present us with a minimal baseline for addressing these problems and perhaps finding some sort of narrow path to détente in today’s escalating Whataboutism Wars.

If we cannot advance simple reforms such as these, however, then I’m not sure where we go from here. Absent a sudden recommitment to the benefits of pluralistic perspectives and positive speech reciprocity, I fear we are stuck in a much worse place today with no easy escape path. A Hobbesian world governed by Conan the Barbarian Communications Law is a free speech death spiral that will feature endless escalation of thuggish, First Amendment-destroying tactics with profound ramifications for our republic.

The fact is, something important has been lost, and it is not clear how to get it back.