The Federalist Society recently released a short documentary called JAWBONED: Miss Information vs. Free Speech. I was honored to be featured in the film.
The First Amendment prohibits the government from affecting formal action, like legislation or regulation, to censor, compel, or otherwise abridge our freedom of speech. “Jawboning” refers to the use of informal government action -– like private emails or public statements — to accomplish censorship through indirect means.
A government official engages in jawboning when he or she overtly or implicitly threatens to use formal power — be it the power to prosecute, investigate or legislate — to influence private actors, like social media companies, to take actions against our speech on the government’s behalf. Jawboning is dangerous because under certain circumstances it may allow officials to launder their censorship through private actors, circumventing the legislative process, and, most critically, circumventing constitutional scrutiny.
JAWBONED offers a balanced view of the multiple, competing free speech interests inherent in jawboning disputes: the government’s, the users’, and the “jawboned” intermediary. It explores the rise of jawboning in the context of social media and highlights the difficulties courts face when trying to parse permissible government “persuasion” from impermissible “coercion.” This is the prevailing — if incomplete — test for unconstitutional jawboning as established by a 1963 case called Bantam Books v. Sullivan.
The film is centered around the two jawboning cases the Supreme Court heard this term — its first since Bantam Books — Murthy v. Missouri and NRA v. Vullo. In Murthy, the Court considers (1) whether the Missouri plaintiffs have standing to sue the federal government over jawboning, and, if so, (2) whether the Biden administration unconstitutionally coerced social media companies into censoring conservative viewpoints during the Covid-19 pandemic through private emails and other means. In Vullo, the Court will decide whether the New York Superintendent of Financial Services, a vocal opponent of gun rights, engaged in unconstitutional jawboning when she offered banks leniency in exchange for cutting ties with the NRA — an effort to suppress the NRA’s gun advocacy by proxy. Vullo is a reminder that jawboning is a much broader problem than just social media.
Filming with the FedSoc Film Studios team was a dream. We were all thrilled with the creative, compelling and balanced presentation of this complex and controversial problem. It was so exciting to see all of our research, scholarship and legal advocacy come to life through MOTIVO Media’s narration and animation.
NetChoice first identified jawboning as an issue relevant to our own work in 2022. We’ve since filed two appellate amicus briefs in jawboning cases, weighed in on multiple legislative proposals to curb government communications, and done substantial speaking engagements on the relationship between Murthy, Vullo and the NetChoice & CCIA Cases.
Among other things, our work has emphasized that the proper defendant in jawboning actions is the source of the constitutional injury: the government. And though NetChoice has advocated for a clear, administrable rule to parse permissible “persuasion” from unconstitutional “coercion,” we’ve also explained that jawboning inflicts a constitutional injury on online services by interfering with their First Amendment right to editorial discretion.
Thus, any rule that suggests jawboning litigants may seek recourse from the digital services themselves would compound the First Amendment problems with unchecked jawboning.
In Murthy, we filed an amicus curiae brief in support of neither party. There, we explained to the Supreme Court that (1) the government cannot bypass the First Amendment’s prohibition against laws compelling private speech by seeking to compel speech through informal means—if they could, the relief we seek in Paxton and Moody would be an empty guarantee; and (2) irrespective of whether petitioners are found to have unconstitutionally “jawboned” social media services, the Court should make clear that private businesses themselves are not state actors and may not be held liable for the government’s actions.
Before that, we weighed in in a similar Sixth Circuit case called Changizi v. HHS. There, we explained the proper standard for finding redressability and traceability in jawboning suits. Redressability and traceability are part of the first question the Court will evaluate in Murthy: whether the plaintiffs have standing to sue the federal government over jawboning social media companies at all.
Being featured in JAWBONED was truly an honor, and I am thankful to the team at FedSoc for this incredible opportunity. I hope viewers enjoy the film and find it illuminating.
Jawboning is one of the most important First Amendment issues of our time. To ensure that our First Amendment rights endure in the digital age, it is critical we get it right.
WATCH JAWBONED: MISS INFORMATION VS. FREE SPEECH HERE: