How much verbal
arm-twisting
and
jawboning
can the government lawfully engage in with social media companies about removing ostensibly false and harmful content before it violates the companies’
First Amendment
free-speech rights? And did a bevy of federal officials, departments, and agencies unlawfully coerce
Facebook
,
Twitter
, and
YouTube
in 2021 and 2022 to remove conservative-leaning content critical of COVID-19 vaccines, lockdowns, mask mandates, and President Joe Biden?
Those are key issues in
Missouri v. Biden
that the
U.S. Court of Appeals for the 5th Circuit
will address in
oral argument
in New Orleans on August 10.
UP FOR DEBATE: TRUMP, DESANTIS, AND 2024 GOP HOPEFULS’ STANCE ON THE JUSTICE DEPARTMENT
The appellate court will consider tossing out a
preliminary injunction
issued July 4 by U.S. District Judge
Terry Doughty
in favor of plaintiffs Missouri, Louisiana, and five individuals who
claim
“government-induced censorship” by platforms of their speech. The injunction bars defendants such as White House Press Secretary
Karine Jean-Pierre
and Health and Human Services Secretary
Xavier Becerra
from, among other things,
Meeting with social-media companies for the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech posted on social-media platforms.
The 5th Circuit
temporarily stayed
the order in mid-July until it could examine the merits more closely.
As I explained
earlier
, Missouri v. Biden is politically polarizing, ensnaring the First Amendment in a battle between conservatives and liberals. I contended that whether “one interprets Judge Doughty’s order” as a victory over government censorship or a defeat in the fight against dangerous falsities “almost certainly is influenced by the political-cultural lens through which one filters it.”
This post avoids the political fray. It explains the muddled First Amendment doctrine regarding jawboning. Understanding jawboning is vital because, when lawfully and successfully done with business entities, it allows the government to informally implement its policy objectives without needing to clear the high hurdles of the legislative process. In short, it’s sometimes easier for the government to tilt corporate decisions in the government’s desired direction through doses of communicative pressure than via the rocky road leading to legislative fiat. The danger for businesses, of course, is that this communication with government officials occurs outside the confines of the judiciary and legal system where substantive and procedural guardrails keep the government in check when First Amendment interests are threatened.
Perhaps the simplest way to understand when jawboning constitutes unlawful government censorship is through dichotomies. When speaking with speech intermediaries like social media platforms about possibly removing––more bluntly, censoring––content posted by others, government officials may: (1) engage in persuasion, but not intimidation; (2) try to convince platforms to remove speech, but not coerce them to do so; (3) criticize platforms’ current actions, but not threaten adverse reprisals if they continue; (4) request/urge removal, but not demand/command it; and (5) advise, but not require.
These somewhat slippery semantic dichotomies are derived from four rulings: (1) the
US Supreme Court’s
1963 decision in
Bantam Books, Inc. v. Sullivan
; (2) the
US Court of Appeals for the 7th Circuit’s
2015 ruling in
Backpage.com, LLC v. Dart
; (3) the
2nd Circuit’s
2022 decision in
National Rifle Association v. Vullo
; and (4) the
9th Circuit’s
2023 ruling in
Kennedy v. Warren
.
Bantam Books, Inc. concluded that “informal censorship” violates the First Amendment when compliance with governmental directives is “not voluntary” and “public officers’ [make] thinly veiled threats to institute criminal proceedings” against speech intermediaries. In Bantam Books, Inc., the threatened speech intermediary was a wholesale book and magazine distributor (Max Silverstein & Sons). The targeted speech were “objectionable” publications produced by Bantam and Dell Publishing Co. that Silverstein & Sons distributed. Examples of government speech that resulted in the Supreme Court finding illicit censorship involved notices sent to Silverstein & Sons stating that “[c]ooperative action will eliminate the necessity of our recommending prosecution to the Attorney General’s department.”
The courts in both Vullo and Kennedy identified four non-exhaustive factors to help in deciding whether a government official’s speech constitutes permissible persuasion or unlawful coercion: (1) the words and their tone; (2) the official’s regulatory authority over the message recipient; (3) the recipient’s understanding of the message; and (4) whether the message references “adverse consequences that will follow if the recipient does not accede to the request.”
The 9th Circuit applied these factors in Kennedy. The
ruling
is interesting because one judge (a Donald Trump nominee) disagrees with the conclusion of two other judges (Barack Obama nominees), who ruled that statements Sen.
Elizabeth Warren
(D-MA) made in
a letter
to Amazon Chief Executive Officer
Andy Jassy
affecting the availability of the book
The Truth About COVID-19
(plaintiff
Robert F. Kennedy, Jr.
penned the foreword) did not raise “a serious question” about the letter’s lawfulness.
Untangling the tenuous difference between convincing and coercing now rests with a
three-judge panel
of the 5th Circuit in Missouri v. Biden.
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This article originally appeared in the AEIdeas blog and is reprinted with kind permission from the American Enterprise Institute.