"The Trump Lawsuits, the Biden Administration's Misinformation Advisory and the Thorny First Amendment Problem of Jawboning"

A very interesting, thoughtful, and learned analysis from Prof. Genevieve Lakier (Chicago), at LawFare; here's the introduction:

For years now, scholars have expressed alarm at the tendency of government officials to use informal means, rather than democratically enacted laws, to pressure the social media companies to take down what they consider to be harmful or offensive speech. The term commonly used to refer to this kind of informal (but often quite effective) practice of government speech suppression is "jawboning."

While by no means unique to the digital public sphere, jawboning has come to be a particularly common tactic of government regulation of the social media platforms, in part because the government has few other means of regulating what the social media companies do. Scholars have worried, for good reason, that the practice of jawboning allows government officials to evade the stringent constraints on their power to regulate speech imposed by the First Amendment. But relatively little attention has been paid to the constitutional question of whether, or rather when, government jawboning itself violates the First Amendment.

Two recent events have pushed this question to the front page. The first of these events was President Trump's decision in early July to file class-action lawsuits against Facebook, Twitter and YouTube. These lawsuits accuse the companies of violating Trump and the other class members' First Amendment rights when they took down, deprioritized, or shadow banned the plaintiffs' speech.

Although the lawsuits have attracted much derision from legal scholars for getting the "First Amendment exactly wrong" by failing to recognize that it applies only to government actors, not private corporations, the core argument the Trump complaints make is not that Facebook, Twitter and YouTube are generally bound by the First Amendment but, rather, that the companies "censored" Trump and other class members' speech because of what the complaints describe as the "overt coercion" of Democratic members of Congress. In other words, the Trump lawsuits make a First Amendment jawboning argument and one that clearly identifies Democratic members of Congress as the agents who were ultimately responsible for the violation of the plaintiffs' First Amendment rights (even though, as is sometimes the case, the complaints name no government officials as defendants).

The second jawboning-related event was the July 15 release by the U.S. surgeon general, Vivek Murthy, of a health advisory warning of the perils to the national public health of social media-disseminated misinformation related to the coronavirus. The advisory and accompanying press conference, in which White House Press Secretary Jen Psaki announced that 12 people were producing 65 percent of the anti-vaccine misinformation on social media platforms and called on Facebook, in particular, to take "faster action against harmful posts," generated a vigorous debate about whether the White House's actions violated the First Amendment rights of Facebook and its users.

Both of these events raise, in somewhat different contexts (the first a court case, the second a public relations kerfuffle), the question of where the line falls between permissible government pressure and impermissible government coercion when it comes to efforts to get social media platforms to suppress harmful speech. Whatever answer courts give to this important question will shape the relationship between government officials and the social media companies that play such a powerful role in contemporary public life. It will help determine, in other words, the balance of power between the old-fashioned governors of the brick-and-mortar public sphere and the "new governors" of the digital public sphere.

It is not an easy question to answer, however, either doctrinally or normatively. This is because the relevant Supreme Court cases are quite inconsistent in the rules they apply to determine when government efforts to pressure private speech intermediaries into suppressing speech violate the First Amendment. This inconsistency can be blamed in part on the fact that there are good reasons to both support and oppose a broad First Amendment rule against jawboning. (Beware those who say the First Amendment issues are easy here.) In this post, I sketch out the doctrinal landscape as it currently stands before exploring the difficult normative questions that jawboning cases force us to grapple with….

For my much less detailed thoughts on the cases Prof. Lakier cites, see my When Government Urges Private Entities to Restrict Others' Speech post.