JAWBONING, THE FIRST AMENDMENT, AND SOCIAL MEDIA: DID THE GOVERNMENT CROSS A LINE?

Author: Kayla Porter, Senior Editor

Was it a violation of the First Amendment for federal officials to “pressure” social media sites to “censor” and “suppress” free speech on topics related to COVID-19, election integrity, and other matters to combat misinformation?[i]  The Supreme Court will address this question in Murthy v. Missouri.[ii]  The plaintiffs—the Attorneys General of Missouri and Louisiana, as well as social media users whose posts were restricted—contend that the “Biden administration officials violated the First Amendment by colluding with Meta, Twitter (now “X”), and YouTube to engage in censorship, including posts about COVID-19 and the Hunter Biden laptop story.”[iii]  The Court will determine “whether government pressure transformed the social media platforms’ content decisions into state action, violating the First Amendment rights of those who challenged the law.”[iv]

This type of coercion is known as “jawboning.”[v] It is “a practice in which a government employee encourages, coerces, or compels another party to comply with a request without using their respective legislative, judicial, or regulatory powers.”[vi] Jawboning is a broad term and encompasses practices as simple as “reminders to a private entity about the state of the law” or as serious as “explicit threats stating the speaker will take legal action if a specific book or piece of media isn’t censored.”[vii] Some of these practices are “best understood as a legitimate aspect of governance,” while others are viewed as “likely illegitimate, and possibly unconstitutional, efforts to censor public discourse.”[viii]  The latter practices raise particular concern “because platforms often have every incentive to bow to pressure from government actors.”[ix] Despite these concerns, the law is unclear about the legitimacy of jawboning as a practice.[x] Jameel Jeffers, the executive director of the Knight First Amendment Institute, has said, “The First Amendment has long been understood to prohibit the government from coercing bookstores and other speech intermediaries to suppress social media. Even outside that context, it’s said very little about how lower courts should distinguish persuasion from unconstitutional coercion.”[xi]

The Justice Department has stated that “the federal government often asks [social media] platforms to remove content that seeks to recruit terrorists, that was produced by America’s foreign adversaries, or that spread disinformation that could harm public health.”[xii]  In response, lower courts have made a series of decisions related to government interference with social media sites over the last year. The Fifth Circuit held that “Texas’s state government may effectively seize control of content moderation on social media websites such as Twitter, YouTube, and Facebook.”[xiii] The Fifth Circuit upheld a law in NetChoice v. Paxton that required “social media companies to publish content produced by their users that they do not wish to publish, but that the government of Texas insists that they must publish.”[xiv] This would be a considerable burden on these sites. In order for the social media companies to remove content, they would be required to disclose a substantial amount of information, including “their algorithms, curation, and search functions, as well as a ‘biannual transparency report’ with information about every single ‘action’ taken against ‘content.’”[xv]  The social media sites would also be required to “establish a complex process of notice and appeal any time it ‘removes content.’”[xvi] This would be easy for these companies to do. Facebook alone removes “billions of pieces of content from its website every year.”[xvii] For each of those removals, Facebook would be forced to “publish a written explanation of each of [those] decisions.”[xviii] In September, the Court announced that it would hear the NetChoice, along with a case challenging a similar Florida law.[xix]

Now, the Fifth Circuit has made a decision in Missouri v. Biden (now Murthy v. Missouri)  that would “effectively [prohibit] the Biden administration from asking social media companies to pull down or otherwise moderate content.”[xx] This case directly conflicts with the decision made in NetChoice. Where Murthy prevents a Democratic administration “to ask media companies to voluntarily remove content,” NetChoice allows a Republican administration to “compel those same companies to adopt a government-mandated editorial policy.”[xxi]  These decisions cannot be reconciled, unless it should be held that the First Amendment has a different application based on partisan lines.[xxii]  This, of course, would undermine the purpose of the First Amendment. As a result, in a 5-4 decision, the Supreme Court temporarily blocked the law upheld in NetChoice that would allow Texas to “effectively [seize] control over the entire content moderation process at major social media sites.”[xxiii]

These cases raise difficult policy questions. Social media sites are “powerful platforms” where “virtually anyone [is allowed] to communicate their views to millions of people at a time.”[xxiv] The companies that run these sites “have to power to exclude anyone they want from these platforms” for any reason, good or bad.[xxv] When a site develops its user base, it is “difficult for other companies to build competing social networks.”[xxvi] Many users have become dissatisfied with Twitter (now known as X) for adopting policies that favor “[favor] trolls and hate speech.”[xxvii] However, no other company has been able to develop a Twitter-like site of their own.[xxviii] As a result, consumers can, and have, become “uncomfortable with so few corporations wielding so much authority over public discourse.”[xxix] Post-NetChoice and Murthy, it can become difficult to ascertain what the boundaries are for content moderation and what is acceptable.[xxx]

The Supreme Court’s decision in Murthy will set important precedent for government moderation in social media. The Fifth Circuit’s decisions have caused serious confusion about what is acceptable jawboning and what is not. As Vox has pointed out, the Fifth Circuit decision has made it so “the FBI has no idea what it is allowed to do if it discovers Vladimir Putin is flooding Facebook, YouTube, and Twitter with content that is actively trying to incite an insurrection within the United States.”[xxxi] Though the law has never been clear about the boundaries of jawboning, the Fifth Circuit has made two holdings in direct conflict with each other. The Supreme Court is now left to clean up this mess and determine the bounds in which the government must act when compelling social media companies to moderate speech made on their sites.

[i] Debra Cassens Weiss, Did US violate First Amendment by pressuring social media? Supreme Court will decide, ABA Journal (Oct. 24, 2023, 9:00 AM), https://www.abajournal.com/news/article/supreme-court-will-consider-whether-us-violated-first-amendment-by-pressuring-social-media. 

[ii] Id.

[iii] Christopher Hutton, Murthy v. Missouri could have major ramifications for Big Tech and free speech, Washington Examiner (Oct. 26, 2023, 4:00 AM), https://www.washingtonexaminer.com/policy/technology/murthy-v-missouri-could-have-major-ramifications-for-big-tech-and-free-speech.

[iv] Weiss, supra note i.

[v] Hutton, supra note iii.

[vi] Id.

[vii] Id.

[viii] Jawboning and the First Amendment, Knight First Amendment Institute at Columbia University, https://knightcolumbia.org/research/jawboning (last visited Jan. 2, 2024).

[ix] Id.

[x] Id.

[xi] Hutton, supra note iii.  

[xii] Ian Millhiser, The Supreme Court showdown over social media “censorship,” explained, Vox (Sept. 29, 2023, 10:15 AM), https://www.vox.com/scotus/2023/9/22/23883888/supreme-court-social-media-first-amendment-netchoice-paxton-murthy-missouri-twitter-facebook.

[xiii] Id.

[xiv] Id.

[xv] Mark Joseph Stern, The 5th Circuit’s Reinstatement of Texas’ Internet Censorship Law Could Break Social Media, Slate (May 12, 2022, 4:36 PM), https://slate.com/technology/2022/05/texas-internet-censorship-social-media-first-amendment-fifth-circuit.html.

[xvi] Id.

[xvii] Ian Millhiser, The Supreme Court shuts down Texas’s attempt to seize control of social media—for now, Vox (May 31, 2022, 7:30 PM), https://www.vox.com/2022/5/31/23149183/supreme-court-texas-social-media-ruling-netchoice-paxton.

[xviii] Id.

[xix] Millhiser, supra note xii.

[xx] Id.

[xxi] Id.

[xxii] Id.

[xxiii] Millhiser, supra note xvii.

[xxiv] Millhiser, supra note xii.  

[xxv] Id.

[xxvi] Id.

[xxvii] Id.

[xxviii] Id.

[xxix] Id.

[xxx] Ian Millhiser, The Supreme Court showdown over social media “censorship,” explained, Vox (Sept. 29, 2023, 10:15 AM), https://www.vox.com/scotus/2023/9/22/23883888/supreme-court-social-media-first-amendment-netchoice-paxton-murthy-missouri-twitter-facebook.  

[xxxi] Id.