The Supreme Court hears arguments about government ‘jawboning’

Gun Rights

Over the past decade or so, as social media platforms such as Facebook and Twitter have become significant forums for public speech, governments in the US and elsewhere have made informal recommendations to them about their handling of issues such as hate speech, terrorist content, and disinformation. In legal parlance, this kind of contact is known as “jawboning,” a word that generally connotes an act of persuasion. But some critics, especially on the right, argue that it actually amounts to government censorship. 

In 2022, the attorneys general of Missouri and Louisiana filed a lawsuit against the Biden administration, alleging that officials violated the First Amendment by “coercing” or “significantly encouraging” social media companies to block content related to the COVID-19 pandemic, the efficacy of vaccines, and the legitimacy of the 2020 presidential election. Last July (as I wrote at the time for CJR), a federal judge in Louisiana handed down an injunction that forbade government agents from engaging in behavior of this type. He also described the discussions between the administration and the platforms as the “most massive attack against free speech” in US history. The Biden administration appealed. In September, a judge of the Fifth Circuit appeals court upheld the injunction.

That judge also struck down some parts of the injunction, ruling that it was overly broad. The Biden administration was still not happy with the outcome, however. Elizabeth Prelogar, the solicitor general, asked the Supreme Court to block the order in its entirety, arguing that one of the cornerstones of presidential power is the ability to “seek to persuade Americans—and American companies—to act in ways that the president believes would advance the public interest.”Allowing the injunction to stand, Prelogar wrote, would result in “grave and irreparable harms.” She called on the Supreme Court to rule, once and for all, on whether the administration’s discussions with the platforms were lawful or not. 

Writing for CNN this week, Jennifer Jones, a staff attorney at the Knight First Amendment Institute at Columbia University, described how a 1963 decision by the Supreme Court set the standard for how the government is allowed to interact with private companies. In that case, a Rhode Island government agency known as the Commission to Encourage Morality in Youth pressured a number of booksellers in the state to remove material that it believed to be obscene, even threatening the sellers with prosecution. The court’s decision in the case made it clear that the government is not allowed to coerce private parties and the public into censoring speech—though it can advise them about its own views on certain matters. As Jones notes, lower courts have since tried to draw a line between coercion and persuasion, though that line is sufficiently blurry that decisions such as the Fifth Circuit’s can find coercion where others do not.

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Jones was writing because, on Monday, the Supreme Court began hearing arguments in the Missouri/Louisiana case. (As my colleague Yona TR Golding has noted, it is only one of five social-media-related cases that the Supreme Court is hearing this term.) According to a number of legal observers who followed the hearing, the justices appeared to be skeptical, both of the initial filing from Missouri and Louisiana and of the appeals court’s ruling. Kate Klonick, an associate professor of law at St. John’s University and a fellow at Yale’s Information Society Project, described in a blog post how a number of the justices “raked the Solicitor General of Louisiana, Benjamin Aguiñaga, over the coals,” asking him to show specifically how the Biden administration breached the First Amendment; in response, Klonick writes, Aguiñaga “kept saying things that made it seem like he’d prepped for oral argument by reading the First Amendment Wikipedia page.” Justice Sonia Sotomayor called out Louisiana’s brief from the bench, arguing that it omitted crucial information that changed the context of its claims, and that it attributed actions and statements to parties who were not involved.

Among other things, the justices seemed confused by the failure of the Louisiana and Missouri attorneys general to show that anyone was injured by the alleged activities of the government, which is a crucial requirement when asking the court to adjudicate cases like this. Klonick noted that some of those named as plaintiffs in the case did not have their social media accounts banned or any of their online speech removed, adding that “there’s nothing in the record that demonstrates firm links that show causality between communications from government to tech companies and vice versa.” Meanwhile, Mayze Teitler, a legal fellow at the Knight First Amendment Institute, pointed out that the platforms often rejected requests from the government and others to take action regarding certain content, complying with only 50 percent of takedown requests from the FBI and only 35 percent from the Election Integrity Partnership, a joint venture between the Stanford Internet Observatory and the University of Washington’s Center for an Informed Public that the suit alleged coordinated with the government to censor speech.

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Dean Jackson, a legal consultant who worked as an investigative analyst for the congressional committee that investigated the January 6 insurrection at the Capitol, wrote for Tech Policy Press that the initial ruling and the Fifth Circuit decision in the case are on thin ice because both are based on “cherry-picked evidence, flawed analysis, and misunderstandings about the internal workings of social media companies.” Jackson argues that snippets of email exchanges between government officials and social media platforms have been used to portray a story of “furious government officials and browbeaten platform staff.” In almost every case, though, the quotes have been taken out of context, with the full exchanges telling a different story. Jackson also referenced comments that Biden made about Facebook “killing people” during the pandemic, by exposing Americans to disinformation about vaccines—arguing that, because these comments were public, they don’t really qualify as coercion so much as political rhetoric.

Jackson and some other observers maintain that the case before the Supreme Court is best understood not as an academic exercise in identifying where persuasion ends and coercion begins, but as part of “a political campaign to end content moderation,” spearheaded by right-wing groups that claim they are being censored by the government, Big Tech, and the nexus of the two. Such observers argue that, to some extent, this campaign has already succeeded whatever the Supreme Court may decide, by exacerbating a chilling effect on discussions between government and the platforms, as well as on research into disinformation. Even though the Fifth Circuit vacated the lower court’s injunction on such discussions, the State Department has since canceled meetings with platforms; meanwhile, various researchers have been served with subpoenas amid allegations that they are complicit in state censorship. Kate Starbird, a professor at the University of Washington, told the New York Times this week that the people who benefit from the spread of disinformation have “effectively silenced many of the people that would try to call them out.”

Others, of course, disagree, arguing that Missouri and Louisiana are correct in their assertions about government censorship of the platforms. Jim Lindgren, an emeritus law professor at Northwestern University who sits on the board of the New Civil Liberties Alliance (which represents most of the individual plaintiffs in the case), wrote in an opinion piece for Reason magazine that worrying about borderline cases where the government might need to communicate with the platforms is irrelevant, because the activity alleged in the case is “miles away from any borderline.” Lindgren argues that the government and its agents squashed speech that was true, promoted speech that was false, and “went after lawful speech not in an isolated instance, but repeatedly and systematically as a matter of policy“—conduct that resulted in the “suppression of entire narratives and lines of thought.”

On Monday, the Supreme Court also heard arguments in another case involving accusations of undue governmental influence—and the outcome of this one could be somewhat different. In 2018, the National Rifle Association sued Maria Vullo, the head of New York State’s Department of Financial Services, alleging that she had violated the First Amendment by pressuring insurance companies to cut ties with the NRA over its pro-gun advocacy. The case began when the state began investigating the legality of NRA-endorsed insurance products that covered losses caused by guns, even when the insured person intentionally killed or injured somebody. Vullo argued that these products violated state law, since they covered intentional criminal acts and related defense costs. She also sent letters to insurance companies warning about the “reputational risks” of working with the NRA.

The NRA claimed that Vullo’s words carried a significant amount of influence within the insurance industry due to her position and that several companies cut ties with the NRA as a result of her letters, leading to millions of dollars in lost revenue. The group also claimed that Vullo offered to show leniency toward insurance companies that her department was investigating if they stopped doing business with the NRA. (Vullo has argued that these offers were “typical of the give-and-take that occurs in plea negotiations.”) In 2022, an appeals court found in favor of Vullo, but the NRA appealed to the Supreme Court. According to the Associated Press, the justices seemed more inclined to rule that there was unlawful coercion in this case than they did in the Missouri/Louisiana one—in part because the NRA case involves what Ephraim McDowell, an assistant to the US solicitor general, has described as a “specific, coercive threat.”

Not that either case is settled yet. The court’s questioning of the lawyers in the Missouri/Louisiana case may suggest that the justices are skeptical as to whether government coercion of the platforms actually occurred. At the same time, no one seems to want to count their legal chickens before they are hatched. And this hesitancy may stem in part from comments that several of the justices have made on related issues in the past—comments that reflect just how deep the speech questions thrown up by the rise of social media go. 

In 2022, I wrote for CJR about comments made by Justice Samuel Alito, who wrote that it is “not at all obvious how our existing precedents, which predate the age of the internet, should apply” to social media companies. Both Justice Clarence Thomas and Justice Neil Gorsuch, meanwhile, have recently questioned the decision in New York Times v. Sullivan, a landmark precedent that protects news organizations by establishing a high bar for libel proceedings involving public figures. These justices’ views about speech may be different from those of their predecessors and some of their colleagues. Whether the court’s apparent skepticism about the Missouri/Louisiana case translates into a broad defense of government jawboning thus remains very much an open question.

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Mathew Ingram is CJR’s chief digital writer. Previously, he was a senior writer with Fortune magazine. He has written about the intersection between media and technology since the earliest days of the commercial internet. His writing has been published in the Washington Post and the Financial Times as well as by Reuters and Bloomberg.

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