On October 20, 2023, the Knight Institute hosted a closed convening to explore the question of jawboning: informal government efforts to persuade, cajole, or strong-arm private platforms to change their content-moderation policies. Participants in that workshop wrote short notes to outline their thinking on this complex topic, which the Knight Institute published in the weeks leading up to and after the convening. This blog post is part of that series.
On October 20, I spent a day with a roomful of smart, thoughtful participants at the Knight Institute’s convening on jawboning. Just as we wrapped up for the day, in a fitting capstone to the day’s conversations, the Supreme Court granted cert in Murthy v. Missouri, the jawboning case that many of my fellow participants have written about and that was a focal point of our discussions.
I have five quick reflections after a day of deep dives into the issues:
First, I’ve been hoping for the Supreme Court to take up this issue since writing Against Jawboning back in 2015. My first reaction to the grant of certiorari was delight. That was followed almost immediately by queasiness. Murthy/Biden could be an excellent vehicle to navigate the First Amendment terrain of jawboning: it involves a range of conduct and topics by a variety of government actors, from the president to minor aides and the like. The claim that the Surgeon General can plausibly engage in jawboning is ludicrous; the claim that the White House sought to suppress information about Hunter Biden’s laptop is deeply worrisome.
Thus, the variegated pressures and governmental issues at interest in this case give the Court ample material to map the line (or, more likely, lines) that demarcate permissible governmental speech from impermissible governmental coercion.
That’s the optimistic perspective. The pessimistic and realistic one is that this case has been deeply politicized from the start, in a way that has distorted the legal analysis. Things went astray early, with a district court opinion that, when coherent, read as though authored by an early version of ChatGPT trained on Wikipedia and internet quote pages. The district court’s injunction was wildly, dangerously overbroad—it forbade communication between the government and private entities who weren’t even part of the case. (If the government can’t communicate with you, then you can’t communicate with the government, raising questions about judicial jawboning. More on that shortly.) The Fifth Circuit, currently the country’s most openly ideological appellate court, trimmed back the injunction, but without much in the way of non-conclusory reasoning, and with a continued willingness to indulge "factiness" rather than hewing closely to actual facts. Now, the grant of cert comes with three Justices dissenting from the Court’s grant of the Biden administration’s application for a stay of the injunction—the same three, however, who also dissented from the Court’s decision to vacate the stay of an injunction against Texas’s “must carry” law covering social media platforms. In other words, for three of the nine justices, it’s fine when Texas tells Facebook what content to carry, but not when the Biden administration does so. At base, that is simply partisan politics. That is worrisome, and discouraging, for a Court that will write the rules of the road for jawboning for the first time.
Second, we need to think about jawboning in a broader sense, both vertically and horizontally. Horizontally, Murthy/Biden is the paradigmatic case: a set of federal executive branch actors pressuring internet platforms. Lurking in the background, though, are the other two branches. Some of the alleged threats involved legislative changes, such as to Section 230 (47 U.S.C. 230), which means that Congress has to be brought on board. It also implies that congressional actors themselves may have the power to jawbone, particularly where the actor has significant power to move towards altering the law. (Of course, congressional actors can bring unpleasant pressures to bear in all sorts of ways, and these also should be on the map.) The courts can also use unlawful pressures—hello, Judge Doughty!—though we tend not to worry as much about the judiciary because it has a well-marked system of appellate review. But the opinions from the district court and the Fifth Circuit (as well as the fact that the cases were specifically brought in those friendly jurisdictions) raise issues about the potential weaponization of a formally neutral judicial process. That’s slightly terrifying, because lawyers instinctively turn to courts to provide countermajoritarian checks when the elected branches of the federal government misuse power. The problem, of course, is that in an era of sharp partisan polarization, the elected branches pick the judges. It’s possible to construct courts that are amenable to deploying their considerable power to reshape the information environment. An open question is whether judicial decisions ought to qualify as jawboning at all: The district court in Murthy/Biden seems clearly to have overstepped its lawful authority (even the Fifth Circuit thought so!), but that looks like hard censorship rather than the softer version.
Vertically, state and local government actors have less power to jawbone at an absolute level, but often hold considerable sway over information intermediaries that are vital in their particular ecosystems. And at times, as with Sheriff Dart, they may try to set up their own checkpoints on the larger Information Superhighway. Federal jawboning gets more coverage, but the local version may have a more direct impact on citizens’ quotidian lives.
Third, although the courts haven’t distinguished themselves in how they’ve handled jawboning in Murthy/Biden so far, the judiciary as an institution may have the best remedial tools in its box for dealing with the problem more generally. Courts have tremendous flexibility in crafting injunctive relief. That could potentially allow judges to tailor remedies based upon the gravity, persistence, and brazenness of jawboning: A post deleted under unlawful pressure might simply be ordered to be restored, while an agency that repeatedly overstepped its authority to dictate moderation decisions could face a more systematic regime of reporting contacts and resulting outcomes. Persistently wayward governmental entities might need more supervision in making it back to the proverbial First Amendment road, and judges are used to exactly this sort of case-by-case tailoring (backed, hopefully, by thoughtful appellate review of their discretion).
Fourth, norms matter deeply with jawboning, but they are hard to map and harder still to generate. Jawboning presents a near-irresistible temptation for government entities at times: Why wait for official action, and attendant criticism, when informal pressures get the same results with less fuss? This means that ethical constraints, such as professionalism and transparency, are under frequent pressure from ends-oriented political goals. The past decade or so has seen a concerted, deliberate assault on institutional norms in government. At their best, those norms can serve as a principled check on unlawful governmental action (or at least as a speed bump). Unfortunately, it is far easier to destroy civic virtues than to instill them. But, if courts do deploy remedial measures like the ones outlined above, they may help teach officials about the importance of complying with the formal rules of the road through less formal, mundane measures. Courts could become norm entrepreneurs.
Finally, while the First Amendment is a good fit philosophically with the jawboning problem, it’s awkward doctrinally: The government speech roads are unpaved at best; no one knows how high the state action guardrails are; and there’s disagreement about whether internet platforms should be on the map as speakers at all. The line between coercion and suasion is difficult, if not impossible, to draw in a principled fashion, especially in the age of the imperial presidency. A presidential whisper carries farther than nearly any shout. The problem is that the other routes are worse. Letting the government apply unchecked informal coercion over dominant information intermediaries is plainly unattractive. And the doctrinal alternatives are unappealing: The next most likely option is the unconstitutional conditions doctrine, which everyone agrees is a mystery wrapped in an enigma. Extra-constitutional options, such as using antitrust law to create a marketplace of ideas with more and smaller stores, are not certain even theoretically. More assertive antitrust enforcement might lead to a greater number of internet platforms—but it might also block those smaller players from collaborating or coordinating responses to governmental pressure. Thinking about unconventional options is an absolute necessity, but it’s likely that the First Amendment will continue to have pride of place in checking jawboning.
Derek Bambauer is the Irving Cypen Professor of Law at the University of Florida Levin College of Law.