Courts & Litigation Cybersecurity & Tech

Jawboning and the Limits of Government Advocacy

Ori Lev
Thursday, April 11, 2024, 8:00 AM

Clear rules are hard to apply but especially necessary in these polarized times.

Supreme Court of the United States (Andrew Bardwell,; CC BY-SA 2.0 DEED,

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The Supreme Court recently heard oral argument in two cases that raise the question of when government “jawboning” violates the First Amendment. Jawboning refers to using speech in an effort to persuade someone to act; the First Amendment is implicated when a government actor is doing the jawboning, raising concerns that the government is not just persuading but effectively commanding. As the New York Times noted over 50 years ago, “the word ‘jawboning,’ as used by most Government officials and businessmen these days, refers to public exhortations and/or implied threats by the Administration as a means of convincing business or labor to adopt certain attitudes and policies.” Whether jawboning is mere exhortation or an implied threat is the key question addressed by the cases that the Court heard. 

One of the cases—involving government encouragement of, or involvement in, content moderation decisions by social media platforms—garnered many of the headlines. That’s understandable given the central role of such platforms in modern political discourse. But the second case—involving alleged abuses of power by New York state officials targeted at the National Rifle Association (NRA) because of the group’s gun advocacy—raised similar questions of when the government crosses the line from (permissible) persuader to (impermissible) coercer. And for reasons discussed below, it may well be the NRA case that provides the better mechanism for the Court to provide a clearer sense of the legal rules that apply when government engagement with private parties relates to protected speech.

The Supreme Court last decided a jawboning case (Bantam Books v. Sullivan) over 60 years ago, when it held that state efforts alleged to be mere efforts to “exhort[]” booksellers to not distribute potentially obscene material constituted “informal censorship” that violated the First and Fourteenth Amendments. Since then, lower courts have adopted various tests for determining when government conduct crosses the line from permissible persuasion to impermissible coercion. The two cases now before the Court give it an opportunity to establish clear rules of the road and better guardrails against abuses of government power.

At issue in these two cases is the use of jawboning to target disfavored speech. As the organization Protect Democracy (of which I am a part) explains in a recent white paper, the frequent targets of jawboning and other forms of government “persuasion” are a segment of society—the business community—that can and should serve as a critical check on government power. It’s therefore important that both public and private actors alike know when government conduct crosses the line. That allows the government to ensure its jawboning efforts are appropriate, and allows business to assess when it might be time to speak up and challenge improper government efforts to coerce speech-related action. And it’s important for the courts to have clear standards to apply in cases alleging such abuses of government power.

These cases are important in their own right, but they also come at a particularly pivotal time for American democracy. Public discourse and faith in democratic institutions are increasingly undermined by mis- and disinformation. And we are experiencing an era of extreme polarization punctuated by, among other things, a leading candidate for president openly running on a platform of retribution.

The Cases Before the Court

The two cases heard by the Court involve very different factual scenarios. In the first case, National Rifle Association (NRA) v. Vullo, the NRA alleges that a New York bank regulator (Vullo) violated the First Amendment when she pressured financial institutions she supervises and regulates, including banks and insurance companies, not to do business with the NRA because she opposes the NRA’s gun promotion advocacy. 

Specifically, the NRA alleges that Vullo (a) issued consent orders against some of the NRA’s insurance partners that prohibited those parties from conducting a range of even legal business activity with the NRA (consent orders are essentially settled enforcement actions in which the target consents to the remedies in the order); (b) pressured another insurance company to cut ties with the NRA by offering leniency on an unrelated enforcement action regarding certain “technical” violations; and (c) issued formal guidance letters that “encouraged” insurers and other regulated financial institutions to manage the “reputational risks” that may arise from their dealings with the NRA or similar gun promotion organizations.

The second case, Murthy v. Missouri, grew out of efforts by the Biden administration to fight what it considered to be mis- and disinformation on the internet related to vaccines and elections, among other things. Depending on whose brief you read, the administration—acting through the White House and various executive branch agencies—either encouraged, pressured, or coerced social media companies (the “platforms”) to remove or downgrade social media posts containing misinformation. 

The communications at issue between the government and social media companies involved a wide range of government actors—including a variety of officials from the White House and the Centers for Disease Control and Prevention with regard to coronavirus-related posts, and the FBI and the Cybersecurity and Infrastructure Security Agency with respect to election-related information (including information about alleged foreign influence operations). During certain periods, there was daily communication between the government and the platforms. Two Republican-led states and several individuals sued, alleging that the federal government’s communications with the platforms crossed the line from mere encouragement of content moderation decisions to coercion or effective control of those decisions, and thus violated the First Amendment’s prohibition on content-based restrictions on speech. 

The Importance of Government Speech 

The oral arguments made clear that the justices recognize that the cases involve two potentially competing interests. The first is the government’s ability to advocate for its policy views on matters of public health, national security, and other important issues—including issuing guidance letters setting forth its views of the law (NRA) or requesting that platforms take down or not publish in the first place information that the government deems harmful (Murthy). The second is private parties’ First Amendment rights to speak or publish free of government coercion. 

The importance of the government’s ability to speak and advocate came through in both oral arguments. In NRA, referring to the NRA’s challenge to the guidance letters issued by Vullo, Justice Elena Kagan noted that bank regulators often warn regulated companies to consider reputational risks, asking the NRA’s counsel, “[I]sn’t it a bank regulator’s job to point that out?” That is, such speech is critical to the government’s functioning, in the regulatory context and otherwise.

The questions were even more pointed in Murthy. Among the hypotheticals raised by the justices in their questions in Murthy were whether the government should be permitted to ask a newspaper to refrain from publishing a story that would harm national security, or ask social media platforms to take down content relating to “a new teen challenge that involved teens jumping out of windows at increasing elevations.” The tone of the questions indicated that the Court clearly believes that such requests are both commonplace and proper. 

Louisiana Solicitor General Benjamin Aguinaga, who argued for the Murthy plaintiffs/respondents (the states of Louisiana and Missouri and a number of individuals), did not help his cause by insisting on an absolutist position that (with few exceptions) the government can never even request (let alone coerce) private parties to take action with respect to third-party speech and that the only remedy available to the government is counter-speech. The Court’s questioning suggested that it is unlikely to go that far and, recognizing the important role of government speech, will instead seek to craft a rule that helps identify the line between permissible persuasion (including requests) and impermissible coercion. 

That is good news. In an election year likely to see foreign operations intended to influence the elections and a flood of election-related mis- and disinformation, the government should be able to identify dangerous content for platforms and express a view on how that content should be handled. Indeed, as discussed at oral argument and elsewhere, the Murthy case and other efforts by actors on the political right (such as a House investigation and private lawsuits) are reported to have had the (intended) effect of chilling a range of governmental efforts to combat election-related mis- and disinformation, as well as the platforms’ own content moderation activities. (At the end of the day, the platforms are responsible for content moderation whether or not the government or private researchers interact with them. Protect Democracy recently published a report on “Seven Ways Platforms Can Prepare for the U.S. 2024 Election.”)

Facts and Context Matter 

The Court’s questions reflected another fundamental truth about these types of cases: They are extremely fact and context dependent. With the exception of clear threats (“Take down this speech or we will bring a regulatory enforcement action against you”), it is often hard to tell when the government has crossed the line into coercion. Has it implicitly threatened action by its choice of words? Does the totality of the circumstances suggest that a reasonable listener would believe that if it didn’t comply with the government “request,” it would suffer negative consequences? Lower courts have identified various factors relevant to these questions, and these cases present an opportunity for the Supreme Court to explicate those or other factors to be used in assessing whether particular government conduct crosses the line. 

In this regard, NRA and Murthy offer very different records. In NRA, there were a discrete number of specific communications by the New York regulator that allegedly caused banks and insurers to stop doing business with the NRA. The Court asked questions about these different alleged acts and their import to the analysis. Is it inappropriate to issue guidance letters identifying the potential reputational risk of working with the NRA if the regulator believes that working with the group really may cause reputational risk? How should the Court consider the enforcement actions brought against the NRA’s insurance partners—as valid government exercise of its power (seeing as how there were admitted legal violations) or as part of the jawboning? 

The discrete number of government actions challenged and the clear allegation as to the impact of those actions on the NRA provide the Court with a relatively straightforward platform on which to craft an opinion further explicating the Bantam Books standard. While such an opinion will likely address how to consider and weigh the specific governmental acts at issue in NRA (enforcement actions, guidance letters, alleged meetings with regulated entities), in doing so it will hopefully also identify the factors courts should use in assessing claims of alleged improper jawboning in other contexts. Having a discrete set of communications at issue, a single plaintiff, and an alleged direct line between the challenged communications and the harm alleged make NRA an attractive vehicle for the Court to clarify this area of the law.

In the Murthy case, by contrast, the sprawling record includes numerous communications by dozens of government officials regarding a wide range of matters. The U.S. Court of Appeals for the Fifth Circuit analyzed these communications in groups. The court focused on each government agency’s communications separately (for example, the court collectively considered all of the White House’s communications) but did not catalog or address each specific communication or group of communications to determine whether specific messages were coercive in the context in which they were made. 

Justice Sonia Sotomayor made the point about the importance of context in taking the unusual step of criticizing the Murthy plaintiffs’ brief during oral argument: “I have such a problem with … your brief, counselor. You omit information that changes the context of some of your claims. You attribute things to people who it didn’t happen to.” Sotomayor’s point highlights one of the problems with Murthy as a vehicle to clarify the jawboning doctrine: Unless you accept the absolutist position put forward by the plaintiffs, it is hard to assess which speech was problematic and which was not, because neither the plaintiffs nor the lower courts carefully parsed the communications at issue.

That is, the plaintiffs and the lower courts focused on specific communications that appeared problematic based on the language used by the government but did not take the next step of connecting each such communication to the subject of the communication or the result of the communication. As one example, plaintiffs pointed to the government asking for “immediate” action, but that request related to an imposter account purporting to belong to the president’s granddaughter, and not to the kind of content moderation decisions at issue in the case. The messy nature of the factual record thus makes it challenging for the Court to opine on the appropriate legal standard.

The collective-analysis approach also raises standing questions that several justices highlighted in their questions in Murthy, pointing out that it is hard to connect a particular action by a particular government speaker to harm to a particular plaintiff when everything is lumped together. Absent a showing that a particular government communication or set of communications led to the removal or downgrading of specific content, plaintiffs will have a hard time demonstrating the injury, causation, and redressability necessary to establish standing. For these reasons, it appears likely that Murthy will be a poor vehicle for the Court to clarify the Bantam Books standard.

Clear Rules Are Especially Important Now 

Finally, in an era of increased polarization and democratic decline, it is important to be able to recognize abuses of power. To that end, it is particularly important for the Court to articulate as clear a legal rule as possible about when jawboning crosses the line from permissible efforts to persuade to impermissible efforts to coerce. As discussed above, because the analysis is—and should be—fact and context dependent, application of any standard is likely to be messy and challenging. But clear guidance on how such an analysis should proceed, and what factors should be considered, can (a) help ensure that everyone knows the rules of the road, (b) encourage government to abide by those rules, and (c) enable the courts to play an important role in protecting against government overreach and abuse while allowing the government to advance its policy objectives. 

Recognizing the fact- and context-specific nature of distinguishing persuasion from coercion, the Knight First Amendment Institute at Columbia University advocates for a “totality of the circumstances” test that identifies specific factors to be applied “in the service of” three constitutional interests: private parties’ interest in “communicating and associating free from government coercion”; the public’s interest “in having and in hearing from a government empowered to attempt to shape public opinion through persuasion”; and the public’s interest in “preventing the government from circumventing constitutional limits by acting informally or surreptitiously.” That framing is one helpful approach to thinking about these issues. 

Given the political age we live in, it might also make sense to adopt a more prophylactic approach. That is, a more nuanced legal standard that might work well in a healthy democracy where the norms of good government are strong and political actors respect those norms, might not be sufficient when officials at all levels of government are increasingly attempting to use the coercive powers of the state to target private companies for viewpoint expression and a major-party presidential candidate is openly promising to use the powers of government for retributive purposes. Drawing a line that constrains government action ever-so-slightly-more might be required. 

The Electronic Frontier Foundation and the Center for Democracy & Technology suggest in their amicus brief that this could be accomplished through a legal rule by which the government loses in close cases—that is, in those cases where it’s not clear the government has crossed the line but a reasonable person might consider the government’s conduct coercive. The theory behind such an approach is that the government can more readily control its speech to ensure it is not coercive by carefully choosing its language and being explicit when it is merely suggesting, not demanding. For example, in the social media context, the government easily could make clear that the decision whether to take down or downgrade a particular post is ultimately the platform’s to make and the government is merely expressing its views. The harm of marginally limiting the government’s speech may be a price worth paying to help preserve the core democratic principle embodied in the First Amendment that the government cannot control private speech. 

Whatever rule the Court adopts, of course, will apply to both sides of the aisle. In that regard, those who view these cases through a partisan lens (on either side of the political spectrum) would be well served to imagine the roles flipped when considering what an appropriate rule is that balances the often competing interests at play in these cases. That said, while the legal rule should be the same, as explained above, its application will have to be context dependent.

Different administrations exercise power differently, and, as Justin Levitt argues, the “presence or absence of guardrails … —and how robust they are in practice—ought to inform the coercive potential of government advocacy.” By way of example, one of the amicus briefs in the Murthy case, arguing for a strict limit on government exhortation and a view of requests from the White House as inherently coercive, stated (without citation or support) that White House officials “can, and often do, pick up the phone and contact the Department of Justice to recommend investigation and prosecution of particular individuals and companies.” While that may have been the case in the prior administration (and may well be again in a future Trump administration), it does not appear to be the case in the current one. But whether it is the case should be a critical factor in assessing whether a particular communication crosses the line.

Whoever comes out on top in Murthy and NRA, the Supreme Court should take this opportunity to clarify how both public and private actors should navigate these challenging issues and how courts should resolve disputes. Clear rules of the road are likely to be essential in the coming years.

Ori Lev is a Special Counsel at Protect Democracy where he works to prepare for a possible autocratic presidency. He previously worked as a partner at a major international law firm, as Deputy Enforcement Director at the Consumer Financial Protection Bureau, as Associate Director for Enforcement at the Office of Foreign Assets Control, and as a litigator at the Department of Justice. He is a graduate of the University of Michigan and Yale Law School.

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