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What is jawboning? And does it violate the First Amendment?
Indirect government censorship is still government censorship — and it must be stopped.
With a few narrowly defined exceptions, the First Amendment prohibits government officials from censoring the speech of private actors. But of course, that doesn’t stop them from trying — and there are many sneaky, indirect ways for them to do it.
One of the most pernicious methods is for the government to attack or pressure not the speaker of disfavored ideas, but those who give the speaker an audience and a platform. If the government limits or even eliminates your ability to publicly voice a message, then you’re effectively being silenced even if no one is putting their hands over your mouth.
This form of indirect censorship is called jawboning, and it’s a serious threat to free speech — particularly when it’s directed at expression on social media, where much of our discourse now occurs.
What is jawboning?
As Will Duffield wrote in a paper for the , “jawboning is the use of official speech to inappropriately compel private action.” In other words, it’s the government using its power — or the threat of it — to indirectly bully individuals, institutions, or organizations into doing their bidding when it can’t flat-out force them.
Think of a grocery store owner who is visited by two large, intimidating men wearing suits.
“Nice store you’ve got here,” the men tell the owner. “It’d be a shame if something happened to it. For a small fee, we can make sure your store stays safe.”
We’ve all seen enough television to know what’s going on here, and we know that the grocery store owner doesn’t have much of a choice: They either pay for “protection” or expect their store to mysteriously burn to the ground within days.
‘So to Speak’ podcast transcript: Jawboning, book banning, and LeBron James thinks hate speech isn't free speech
Interviews
FIRE's new Director of Public Advocacy Aaron Terr and the Cato Institute's Will Duffield join the show to discuss a slew of recent free speech news.
Imagine the president of the United States demanding that social media companies — private entities with their own First Amendment protections — begin monitoring their platforms for “misinformation” and “disinformation,” and removing the accounts of those responsible for disseminating it. And imagine this president’s administration intimating and flat-out announcing that, given the pervasive and harmful nature of this mis- and disinformation, they are considering making changes to Section 230 — a law that protects publishers from liability for what users say on their platforms.
The threat is palpable, and the social media companies are all but compelled to oblige.
Of course, you don’t have to imagine such a thing, because that’s exactly what happened between the . And before that, in 2020, then-President “big action” against then-Twitter and other social media platforms because they appended fact checks to some of his posts. Among the actions Trump proposed was cutting back on Section 230 protections.
Does jawboning violate the First Amendment?
FIRE has filed multiple amicus briefs challenging government jawboning, and some of these cases have even made their way to the Supreme Court. In one of those cases, NRA v. Vullo, the Supreme Court unanimously affirmed the First Amendment’s restrictions on jawboning. The case involved New York Department of Financial Services superintendent Maria Vullo, who made a series of thinly veiled threats against regulated banks and insurance companies in hopes that they would sever ties with the National Rifle Association because Vullo opposed their political advocacy. ݮƵAPP filed two amicus briefs in this case — one urging the Court to take it, and another arguing that the First Amendment’s formal legal protections cannot be evaded by veiled threats and vague demands for cooperation. The Court agreed, unanimously reaffirming its prior 60-year-old ruling in Bantam Books v. Sullivan (1963) that governments cannot use third parties to censor speech they disfavor.
However, there was another case where the Court left the limits of government pressure on social media companies an open question. The case was Murthy v. Missouri (formerly Missouri v. Biden), in which state officials alleged the federal government “coerced, threatened, and pressured social-media platforms to censor” content about the COVID-19 pandemic in violation of the First Amendment. Unfortunately, the Court ruled in a 6-3 decision that neither the state of Missouri nor the individual plaintiffs had shown they had standing to bring their case. However, the Court indicated a legal remedy could be provided in a proper case.
Fortunately, the Court’s decision in Vullo explained what constitutes unconstitutional coercion. It pointed to factors like the “government speaker’s word choice and tone; whether the government official’s speech was perceived as a threat by the private party; whether the government speaker had regulatory authority when speaking; and whether the government speaker threatens adverse consequences should the private actor not do as requested.”
Supreme Court considers when government ‘persuasion’ becomes unconstitutional coercion
News
In today’s oral argument for NRA v. Vullo, the Court grappled with government regulators using indirect pressure to silence protected speech.
However, as anybody who has seen a mob movie can tell you, it can be hard to prove you’re being threatened even though you know you are. And of course Americans should still be concerned about jawboning even when it barely stays within constitutional boundaries.
This is dangerous stuff, especially because a lot of it happens behind closed doors. The public may never know that certain social media accounts were terminated and certain content was removed at the behest of the government — except in the rare cases where those communications are exposed, like they were with the Twitter Files.
But the stakes are too high to rely on private communications going public. The U.S. government has immense regulatory power, and even the threat of it can force companies, platforms, and individuals to bend to their will in ways that directly compromise their — and our — freedom of speech.
As Duffield said during his discussion with ݮƵAPP’s Nico Perrino on the “So to Speak” podcast:
Jawboning isn’t limited to legislators or threatened legislation. Legislative threats are often the most visible, but the government presiding over antitrust cases at the state and federal level, doling out fiber optic subsidies, picking partners for launches of all kinds of government stuff into space. Then, there’s always some lever that the government can pull, or individual government actors can often pull or influence.
That's why jawboning is so pernicious. It can occur at almost any level of government. Unless there are clearly defined limits on jawboning, then no person or organization is safe from it.
How can we prevent jawboning?
The fight over the government’s role in communicating with online platforms will likely rage on for a long time, and it’s crucial that we make the right moves to preserve free speech and avoid government overreach.
To start, Congress should mandate that government agencies disclose their communications with social media platforms when those communications seek to pressure a platform to restrict user speech. Exposing the government’s backdoor censorship efforts to public scrutiny will make them less likely to recur and make it easier to determine when the government has violated the First Amendment.
Most importantly, the power to prevent this problem from getting worse lies with the people.
Jawboning is an abuse of authority. If government officials use this tactic to silence disfavored speech, dissent, or criticism, it’s up to us to hold those officials accountable. But accountability is only possible with awareness, which is why transparency is so important.
It will also be necessary to rise above partisanship to truly safeguard our expressive rights online. Silencing what you consider misinformation or disinformation may seem like the right move, and it may garner your political or ideological side some short-term benefits — but in the long run, whatever tools you use to censor the opposition will be used against you the moment you aren’t in charge. And nobody is ever in charge forever. If we truly want to safeguard our own ability to speak up, speak out, and dissent, we’ll have to protect the right of others to do the same.
Free speech, and the wider discourse, depends on it.
Last updated Nov. 8, 2024.
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