Over the past few years, and particularly over the past few months, questions have arisen about the legitimacy of informal government efforts to persuade, cajole, or strong-arm private platforms to change their content-moderation policies. These informal efforts, sometimes called “jawboning,” take a variety of forms and are undertaken by a variety of actors. Some of them are probably best understood as a legitimate aspect of governance. Others are probably best understood as illegitimate—and possibly unconstitutional—efforts to manipulate or censor public discourse. The latter efforts are especially concerning because platforms often have every incentive to bow to pressure from government actors. The content they are encouraged to suppress is usually not their own, and resisting government pressure can lead to regulatory retaliation.
The First Amendment imposes stringent constraints on the government’s power to regulate speech, but the question of when the First Amendment prohibits government jawboning warrants more attention than it has received thus far. To explore this question and closely related questions, the Knight Institute will host a one-day closed convening at Columbia University on Friday, October 20, 2023. Participants will be asked to write a short (3-5 page) note in advance of the convening addressing relevant empirical questions (the mechanisms of jawboning, the significance of it as a form of censorship), the current landscape of litigation involving jawboning and the platforms, the persuasiveness and adequacy of relevant First Amendment precedents (including Bantam Books v. Sullivan and Blum v. Yaretsky), the proper application of those precedents in new contexts, or the advisability of regulatory reform (e.g., transparency requirements, restrictions on certain types of jawboning). These notes will be shared with participants and published as blog posts on the Knight Institute’s website.
Scholars, practitioners, regulators, platform representatives, and others interested in participating in the convening are invited to submit statements of interest to [email protected] by Friday, July 14, 2023. A statement of interest should be no more than a few paragraphs and should describe the applicant’s relevant background, what specific questions are of most interest to the applicant, what the applicant expects to be able to contribute to the discussion, and how the applicant hopes to use any insights gained from the convening. We anticipate inviting 10-15 people to participate. The Institute will cover participants’ reasonable travel costs. The Institute may also invite some participants to write longer papers for publication by the Knight Institute; invitees who agree to do so will be paid an honorarium.