Too often, our “free speech culture” gloms together private censorship and state-sponsored censorship. These things are not the same. Only one of them is prohibited by the First Amendment, and failing to differentiate between the two runs the risk of collapsing the distinction between censorship, on one hand, and on the other, private citizens exercising their own First Amendment rights (sometimes by choosing who to associate with or who to support).
That’s not to say there aren’t “free speech” risks from private power—especially in an era where control of major media outlets is concentrated in the hands of a few. And there are hard cases where it may not be clear who is driving the censorship—state actors or private ones.
That’s where Genevieve Lakier’s Enforcing the First Amendment in an Era of Jawboning comes in. Lakier attempts to unpack the law of “jawboning.” In jawboning, the state isn’t wielding the red pencil directly, but neither is the private entity simply making its own decisions in a free and voluntary way. Instead, in these cases nominally private entities make decisions that affect free speech values, but the decisions are being shaped, if not driven, by government action. Lakier wrote and posted this masterful piece before the latest high-profile instances of jawboning, including the Trump administration’s ham-handed efforts to get ABC/Disney (a private corporation) to pull Jimmy Kimmel (a private citizen) off the air for saying something the regime didn’t care for.
The occasion for Lakier’s article is the Supreme Court’s recent decision in National Rifle Association v. Vullo, the unanimous case that was much cited and often trotted out during the Kimmel censorship debacle. In Vullo, the Court concluded that the NRA had stated a complaint against state officials that signaled to regulated parties that their regulatory infractions and legal violations would be met with leniency—if the regulated parties stopped doing business with the NRA. (Sounds a little bit like “we can do this the hard way or we can do this the easy way.”) Vullo is really the second case where the Supreme Court has opined on the legal merits of what looks like a case of jawboning—the previous case, Bantam Books v. Sullivan, was in 1963. (The Court did have another case of alleged jawboning on its docket in the same term as Vullo, Murthy v. Missouri, but it resolved the case on standing/justiciability grounds.)
Lakier’s article surveys how the federal courts have developed the law of jawboning in the wake of Bantam Books. She sifts through different approaches to jawboning and argues that some approaches are consistent with and survive Vullo, whereas others are not. Lakier persuasively reads Vullo as a context-specific, totality-of-the-circumstances inquiry to jawboning. And that, she argues, rules out hard-and-fast rules about what jawboning is or isn’t, such as lower court rules that recognize jawboning only where the government adopts certain tactics.
Lakier’s article is a model of my favorite kind of doctrinal scholarship. It takes a murky, unclear area of law; it does a deep analysis not just of what the Supreme Court is doing, but what the lower courts have done as well; and it imposes some rigor and clarity on the legal domain with rigorous analysis and sharp arguments rooted in careful parsing of case law, assessments of deep constitutional principles and values, and political economy and social context.
But law is law and lawyers are lawyers; and so I still have some questions about the law of jawboning. For example, Lakier frames NRA v. Vullo in terms of a categorical “rule” that prohibits all efforts to coerce or force disassociation. And part of that rule, she argues, reflects a recognition that “even when the coercive pressure the official brings to bear is not so great that it couldn’t reasonably be resisted,” there still might be unconstitutional jawboning. I agree to the extent Lakier means to describe how the regulated entities in NRA v. Vullo could have internalized and borne the costs of the sanctions the government might have sought against them. But the jawboning inquiry still might be sensitive to the extent of the threat, particularly if NRA v. Vullo is a totality-of-the-circumstances test that throws a bunch of different considerations into the mix.
I also wanted to hear more about the Court’s differential approaches to jawboning in Vullo and in Murthy v. Missouri, the case the Court disposed of on standing/justiciability grounds the same term that it issued Vullo. Lakier suggests that Murthy represents a more rigid, formalist judicial approach to jawboning (again, under the guise of standing/justiciability) than Vullo reflects. In Murthy, Lakier argues, the Court seemed to want jawboning plaintiffs to have evidence of “specific causation”—i.e., that the government threats causally resulted in the suppression of particular speech. But making that showing will often be difficult; in any case, NRA v. Vullo didn’t seem to require it, since it recognized that attempted, but unsuccessful, jawboning could also give rise to a constitutional claim. Lakier writes that “Nothing in Murthy suggests that the businesses who are directly targeted by informal government pressure need to show that the pressure caused them to act in order to establish their standing.” I’m less sure that had the social media companies been the plaintiffs in Murthy the result in the case would have been different. However, I agree with Lakier that Murthy is an odd, difficult-to-understand case in part because it was mired by “highly spurious fact finding by lower courts.” And I wonder whether, at least outside the particular lower courts that were involved in Murthy, that’s the best way to understand that decision. I also would have liked to hear a little bit more about how Lakier thought the Murthy case should have been analyzed, on the merits or on standing, and how, given the allegations in the case—which involved federal government efforts to “flag” for social media platforms speech involving “disinformation” concerning both Covid election-related issues—should have come out under the proper understanding of NRA v. Vullo and jawboning.
Still, given all the transparent efforts at jawboning and state-sanctioned censorship that we are seeing, I hope courts read Lakier’s article. And soon—there will surely be more claims headed their way.
