A Supreme Court ruling that jawboning is unconstitutional would bolster free speech
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A Supreme Court ruling that jawboning is unconstitutional would bolster free speech

Attempts to censor speech, either by intimidation or threatened legal action, should be prohibited as violations of the First Amendment.

The U.S. Supreme Court recently heard arguments regarding the federal government’s practice of jawboning—the practice of using influence or the threat of action to coerce companies and organizations to engage in certain behaviors like censorship, often against their wishes. As the Supreme Court considers two cases related to the practice, Americans should hope for a ruling that jawboning is unconstitutional and for a clear, objective standard that allows the government to spread its message while protecting citizens’ First Amendment rights.

Government officials may publicly share their beliefs about how businesses should operate. However, when they use this speech to pressure firms via regulations and threats of financial penalties, they violate the Constitution. Two states, Louisiana and Missouri, sued the federal government to try to stop jawboning.  Murthy vs Missouri argues social media companies like Facebook and Twitter acquiesced to government pressure to censor private speech by throttling individual accounts that expressed skepticism about COVID-19 pandemic measures. The key question is whether the government’s requests were sufficiently coercive to make social media companies effectively state actors and whether the First Amendment rights of those users were violated through censorship.

Current case law provides conflicting guidance for when and how government officials can legally tell private companies how to operate. Even a perceived threat of government action, whether there is clear follow-through, can chill or compel speech. The difference between convincing and coercing is in question, especially when the government has regulatory authority over those it’s trying to convince.  

There have been several public instances of what may be considered jawboning in the past years. The Twitter Files, reporting on internal communications at Twitter, revealed hard evidence of public officials forcefully demanding that content contradicting the government’s guidance on COVID-19 be removed from the platform. Twitter was not the only social media platform the government jawboned. Facebook also was pressured by the CDC to moderate COVID-19-related user content.

Jawboning becomes especially pernicious when it occurs out of the public eye, leaving citizens unaware it is happening and that their speech is being censored at the request of government officials. It can result in companies acting in anticipation of government demands, not just a direct threat. YouTube went so far as to temporarily suspend Sen. Rand Paul (R-Ky.) for suggesting cloth masks do not significantly reduce the spread of COVID-19. In Sen. Paul’s case, government officials never explicitly told YouTube to take down his video. Officials strongly suggested YouTube and the White House coordinate on content moderation decisions. 

Social media companies are not the only firms pressured to censor speech by government jawboning. Financial companies (like credit card companies, insurers, and PayPal) are also subject to government censorship by proxy. In the second case in front of the Supreme Court, National Rifle Association (NRA) v. Vullo, the head of the New York State Department of Financial Services told insurance carrier Lloyd’s she would not pursue other actions against possibly illegal product offerings if they ceased covering the NRA as their corporate insurer. Afterward, she sent letters to insurance companies that wrote policies for the NRA asking them to reconsider their business: “… [T]he Department encourages its insurers to continue evaluating and managing their risks, including reputational risks, that may arise from their dealings with the NRA.”

Unclear standards allow governments to take advantage of firms’ aversion to legal risk, especially in a heavily regulated industry like insurance. Partly as a result of New York’s action, the NRA claims it lost access to banks and insurance companies. According to the NRA, these losses cost the organization millions of dollars and made it much more difficult to spread its message, which the First Amendment protects.

Three other cases are relevant to Murthy and Vullo. In Bantam Books v. Sullivan (1963), the Supreme Court held that the government cannot employ a third party to censor or jawbone citizens, in this case, booksellers. A state commission circulated a list of allegedly obscene books to police and distributors, recommending prosecution for selling the listed books. This effort was clearly to intimidate the publisher and prevent the publication of the books, violating the First Amendment.   

The Supreme Court again examined coercion in Blum v. Yaretsky (1982). In this case, a patient challenged policies put into place by a nursing home at Medicaid’s urging. The patient argued that because nursing homes are largely funded by the government, they can serve as state actors and therefore are subject to constitutional limits. The justices held that state action is responsible for private action only when the state provides such forceful input as to feel coercive. In other words, the private actor feels they have no option but to act as a state proxy. In this case, Medicaid payments to nursing homes were not held to be sufficiently coercive to require due process, and the patient was not entitled to a hearing.  

Backpage v. Dart (2015) is similar to Bantam Books and applies most directly to Vullo. The sheriff of Cook County, Illinois, attempted to coerce payment processors away from doing business with online marketplace Backpage’s adult services ad section by sending a letter threatening the companies with a criminal investigation. The Seventh Circuit Court of Appeals ruling was unambiguous in rejecting the sheriff’s tactics: “A government entity, including therefore the Cook County Sheriff’s Office, is entitled to say what it wants to say—but only within limits. It is not permitted to employ threats to squelch the free speech of private citizens.”

This legal patchwork does not give a clear standard on what specific actions the government can take that are not coercive. The lack of clarity in the rules governing freedom of speech and association has made jawboning an often-used tool by the government to coerce social media and other companies into censoring their users. 

A strong standard would echo the conclusions of Bantam Books and Backpage. Attempts to censor speech, either by intimidation or threatened legal action, should be prohibited as violations of the First Amendment. The court should also make clear the government can, of course, publicly speak on important matters.

In the Murthy oral argument in March 2024, the Supreme Court justices considered whether a broad ruling would prohibit the government from speaking out against teens jumping out of windows. The government should be allowed to publish information about health and safety, but that’s clearly different from jawboning those who present different views into silence.

Recent history has shown that the government’s ability to jawbone should be greatly reduced to protect First Amendment rights. Americans of all political persuasions should support the Supreme Court setting a clear, objective standard that protects speakers from government interference while allowing the government to provide information it believes is important to the public.